It is a common practice in District Courts that whenever the party (Specifically Husband) gets any final or interim order passed by the Magistrate against him under the Protection of Women from Domestic Violence Act, 2005 (Hereinafter “the DV Act”), he immediately rushes to file an appeal against the said order before the Court of Session under Section 29. Section 29 provides that an appeal shall lie to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. It is to be noted that with this appeal, the husband also files an application seeking stay on execution of the order of the Magistrate during the pendency of the appeal”. Here, the Court of Session, after hearing the flamboyant arguments of the Counsel and without self-contemplation of its vires to pass order for interim relief, passes the interim order for staying execution of the order of Magistrate during the pendency of appeal under Section 29.

Thus, the substantial question of law in relation to Section 29 of DV Act, that can eminently be emanated here is:

“Whether the Court of Session has any power under Section 29 of the DV Act to pass any interim order granting interim relief to any party during the pendency of the appeal?”

And in particular:

“Whether the Court of Session, during the pendency of the appeal under Section 29 of the DV Act, has any power to stay either interim or final order of maintenance passed by the Magistrate?”

Since there are hardly any judgement in which the said questions have been adjudicated, thus it incumbent on the authors to scan the anatomy of the said questions. The said question seems easy from outside since it has been the general practice in the District court to file appeal against the interim order and get stay from the Session Court. However, answer to the said question has many sheds. It has always been difficult to answer the question that whether power of the court to pass the order of final relief automatically includes the implied power to stay the order passed by lower court?

There are various judgements speaking on both the sides. There are some judgements which have held that power of the court to pass final relief automatically implies the power to provide interim relief. However, some judgements, have held that if court or tribunal is the creature of the statute, and if statute does not confer express power on the court to pass order of interim relief then the court will possess no power to pass the same.

Judgements which held that Court has implied power to grant stay/interim relief:

In Polini v. Grey, [1879] 12 Ch. D. 438 Lord Jessel M.R. said about the powers of the Court of Appeal to grant stay at page 443:

“It appears to me on principle that the Court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property pending litigation is this, that the successful party, is to reap the fruits of that litigation, and not obtain merely a barren success. That principle, as it appears to me, applies as much to the Court of first instance before the first trial, and to the Court of Appeal before the second trial, as to. the Court of last instance before the hearing of the final appeal”.

The Hon’ble Supreme Court in the case of ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR 1969 SC 430 held that the income tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act. It further held that It could well be said that when s. 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceedings as will prevent the appeal if successful from being rendered nugatory.

The Hon’ble Supreme Court in the case of Savitri vs. Govind Singh Rawat AIR 1986 SC 984 held that the power conferred on the Magistrate under Section 125Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period.

However, one cannot lose sight of the law laid down in the Sakiri Vasu vs State of UP, (2008) 2 SCC 409

“It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.”

Judgements which held that Court has no power to grant stay/interim relief if not specifically conferred by statue:

The Hon’ble Supreme Court in the case of Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCC 57, which was a decision as to the jurisdiction of a Magistrate to review or recall his order, held that in the absence of any specific power in the Code of Criminal Procedure, the Magistrate was not entitled to exercise such a power. It was also  held that unlike Section 151 of the Civil Procedure Code, which vests the civil courts and certain tribunals with inherent powers, the subordinate criminal courts has no such inherent power, since there is no provision in the Code of Criminal Procedure empowering such powers.

The Hon’ble Supreme Court in the case of Morgan Stanley Mutual Fund Vs. Kartick Das [(1994) 4 SCC 225], was considering the scope of the provisions of the Consumer Protection Act, 1986. On construction of Section 14 of the said Act, this Court came to the conclusion that there was no power under the Act to grant any interim relief, even of an ad interim nature. The Hon’ble Apex court upon deciding the matter, observed as follows:

“……… If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience.”

Also, the reference can be sought to the decision of the Hon’ble Punjab and Haryana High Court in Sham lal v. State Election Commission, AIR 1997 P&H 164, wherein, the Court observed that:

“If the legislature had so desired, nothing prevented it from conferring statutory power upon the Election Tribunal to grant interim stay or injunction or restraint order during the pendency of the election petition.”

Accordingly, the Court went on to hold that the Election Tribunal did not have the power to pass any order of injunction or stay which would impede the implementation of the result of election.

The Hon’ble Supreme Court in the case of Super Cassetts Industries Ltd vs Music Broadcast Pvt. Ltd, AIR 2012 SC 2144

39. As has been held by this Court in innumerable cases, a Tribunal is a creature of Statute and can exercise only such powers as are vested in it by the Statute…”

It is to be noted to the said reasoning, Chelameswar, J. concurring with the bench added the following:

4. In the context of Courts adjudicating civil disputes, the jurisdiction and powers necessary to effectively exercise the jurisdiction, such as, securing the presence of defendants / respondents or witnesses, granting of interim orders etc., and the method and manner of enforcement of a decision or a decree, are matters elaborately dealt by the Code of Civil Procedure. Similarly, the Code of Criminal Procedure contains provisions necessary for the exercise of the jurisdiction of the Criminal Courts. While the Code of Civil Procedure, under Section 151, recognizes the existence of inherent powers in all Civil Courts, the Code of Criminal Procedure recognises all such inherent powers only in the High Court under Section 482.

5. Therefore, the jurisdiction and authority of not only the Tribunals, but also the Courts are structured by the statutory grants and limitations.

Analysis of Section 29 of DV Act: Whether it contains the implied power to grant stay:

Before examining the said question, it is inevitable to cast a shadow on Section 29 of the DV Act:

Section 29: Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

Section 29 makes it apparent that appeal can lie to Court of Session, either against the final or interim order passed by the Magistrate under the DV Act. However, it is silent upon the power of the Court of Session to pass any interim order during the course of pending appeal against the order passed by Magistrate under the DV Act while such power is expressly conferred on the Magistrate under Section 23.

 A correct answer to both the stated questions would depend upon how the DV Act of 2005 and the Code of Criminal Procedure, 1973 is to be viewed and interpreted. It is relevant to note here that the DV Act constitute a complete code for the matters arising under it.

The Hon’ble Supreme Court in the case of Shalu Ojha v. Prashant Ojha, (2015) 2 SCC 99 doubted the power of the Session Court in granting the interim relief in any form though did not adjudicate the issue in detail because the same was not raised by the parties in that case. The extract of the relevant observation of the Hon’ble Supreme Court in the Shalu Ojha case is provided hereinbelow:

“Questioning the correctness of the Magistrate’s order in granting the maintenance of Rs.2.5 lakhs per month the respondent carried the matter in appeal under Section 29 to the Sessions Court and sought stay of the execution of the order of the Magistrate during the pendency of the appeal. Whether the Sessions Court in exercise of its jurisdiction under Section 29 of the Act has any power to pass interim orders staying the execution of the order appealed before it is a matter to be examined in an appropriate case. We only note that there is no express grant of power conferred on the Sessions Court while such power is expressly conferred on the Magistrate under Section 23. Apart from that, the power to grant interim orders is not always inherent in every Court. Such powers are either expressly conferred or implied in certain circumstances. This Court in Super Cassettes Industries Limited v. Music Broadcast Private Limited, (2012) 5 SCC 488, examined this question in detail. At any rate, we do not propose to decide whether the Sessions Court has the power to grant interim order such as the one sought by the respondent herein during the pendency of his appeal, for that issue has not been argued before us.”

It is relevant to note that there are two types of courts. One is he court which are the creation of the Constitution and Second the courts which are the creation of the Statute. Courts which are the creation of Constitution possess inherent power in them even if the same has not been conferred by any statute. However, Court which are creation of Statute does not contain the inherent power but only limited implied power/incidental power unless the same has specifically conferred on them by the Statute.  Though these implied powers/ incidental powers can only be confined to grant adjournment, order the effective investigation in case of Section 156 (3) CrPC, to hear the early hearing applications so as to support the main case. However, the same cannot go to the extent of passing the order of stay. It is to be noted that Court of Session is the creature of statute. It is a well settled law that any court or tribunal which is a creature of statute does not get any implied power automatically until the same has been conferred on it by the said statute either expressly or in form of inherent power. The Domestic Violence Act vide Section 23 postulates power to grant interim relief only upon the magistrate, therefore, the Court of Session cannot assume the said power and grant any sort of interim relief under Section 29 of the Act against the interim or final order passed by the Magistrate.

Thus, an analysis of the aforementioned decisions of the Apex court and the principles of statutory interpretation reveals that the Session Court, in the absence of any express conferment of power or of inherent power by statute i.e. either the DV Act or the Code of Criminal Procedure, 1973, cannot grant an interim relief under Section 29 of the DV Act. It is submitted that the Session Court is a Court created under Section 9 of the CrPC, and being a creature of statute, its powers are confined to the powers given to it under general Code of Criminal Procedure, 1973 and special enactments like the DV Act for present purpose. It is relevant to note that Section 29 conferred certain limited powers to Session Court to hear the appeal from the order passed by the Magistrate. The same is procedural in nature and does not vest the Session Court with any kind of substantive power to grant interim orders under Section 29 of the DV Act. It is emphasised that if the legislature had so desired, nothing prevented it from conferring the power upon the Court of Session to grant interim relief.

Though the law is yet not settled due to non-adjudication of the said issue in any of the cases and the Court of Session is still using the power to grant interim relief to parties during the pendency of appeal under Section 29. However, the authors have fond hope that the same will be settled soon by the Hon’ble Supreme Court in the interest of justice.

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Pawan Reley is Advocate, Supreme Court of India

Sajal Awasthi  is Advocate, Delhi High Court

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