Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 2366 (RAJ)

Jai Prakash v. State of Rajasthan

2008-10-20

C.M.TOTLA

body2008
JUDGMENT 1. - Petitioner requests for setting aside Magisterial order dated 19.03.2007 as affirmed by Revisional Court and dismissal of respondent No. 2's application for restoring her (No. 2's application) under the provisions of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) (hereinafter referred to as "the Act of 2005"). 2. Alleged circumstances as stated giving rise to this petition, are that respondent No. 2 filed an application against petitioner under Secs. 12 read with Secs. 18, 19, 20, 22 and 23 of the Act which dismissed on 13.02.2007 for non-presence on behalf of respondent No. 2, respondent No. 2 presented an application for restoring her petition, learned Magistrate vide order dated 19.03.2007, allowing the petition, restored the application on number for further proceedings, revision preferred by the petitioner dismissed vide order dated 24.01.2007 and order of 19.03.2007 affirmed. 3. Learned counsel for the petitioner argued that (1) for proceeding under the Act, procedure as laid down in Cr.P.C. is to be followed. (2) There is no provision for review of the Magisterial order by the Magistrate Court itself. (3) The order of 19.03.2007, directing restoration to original number is nothing but a review of the earlier order of dismissal. (4) Learned Sessions Judge also erred in upholding order. Inviting attention towards Section 28(1), reliance is placed on Major General A.S. Gauraya and Anr. v. S.N. Thakur and Anr., 1986 Cr.L.J. 1074 Bindeshwari Prasad v. Kali Singh, AIR 1977 SC 2432 ; and Hari Singh Mann v. Harbhajan Singh Bajwa, AIR 2001 SC 43 . 4. Learned Public Prosecutor argued that lower Court has expressed cogent reasons. 5. Admittedly, petition restored was one under Sec. 12 read with other provisions of the Act. Section 28 provides like this:- "Section 28. Procedure. - (1) Save as otherwise provided in this Act, all proceedings under Secs. 12, 18, 19, 20, 21, 22 and 23 and offences under Sec. 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). Section 28 provides like this:- "Section 28. Procedure. - (1) Save as otherwise provided in this Act, all proceedings under Secs. 12, 18, 19, 20, 21, 22 and 23 and offences under Sec. 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in this sub-Section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Sec. 1.2 or under sub-section (2) of Section 23." Learned counsel for respondent No. 2 argued that as per provisions of Section 28(2) of the Act, the Magisterial Court only acts itself can lay down on facts appropriate procedure, as such a Magistrate for proceeding under the Act is not precluded from restoring the case dismissed in default. Rebutting above arguments, on behalf of the petitioner argued that when no proceeding was pending, no question of any procedure on proceeding under Sec. 28(2). 6. Considering rival arguments. It is a settled law that a Magisterial Court cannot review its own order. It is a matter under the provisions of the Protection of Women from Domestic Violence Act, 2005. Clear is the above provision-normally proceedings are governed by the provisions of the Code of Criminal Procedure. Simultaneously, a enabling provision is also there. Reading sub-section (1) and sub-section (2) together, it is quite apparent that procedure prescribed by the provision of the Code of Criminal Procedure, 1973 is to be followed and subject to basic principles, more particularly of natural justice and particularly for disposal of application under Sec. 12 and as per Section 23(2), the Court can lay its own procedure. Obviously, there is no bar for laying procedure for taking a enabling procedure which is not contrary to express provisions of the Cr.P.C. and do not prejudice or defeat valuable rights of the opponent-to take contrary interpretation may tantamount to making Section 28(2) non-effective. 7. Considering the facts of the case at hand, application under Sec. 12 and other provisions of the Act was dismissed on 13.02.2007 for non-appearance of respondent-and (admittedly and also as is mentioned in the order of 19.03.2007) application for restoration presented on 13.02.2007, so no case for invoking jurisdiction under Sec. 482, Cr.P.C., is made out and petition is liable to be dismissed and is dismissed.Petition Dismissed. *******