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Madhya Pradesh High Court · body

2013 DIGILAW 897 (MP)

Mahesh Mathur v. State of M. P.

2013-08-01

D.K.PALIWAL

body2013
ORDER : 1. This petition has been filed under section 482 of Criminal Procedure Code for quashing the Case No. 1/2012 pending before the JMFC, Gwalior, under section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act). 2. The brief facts giving rise to this petition are that respondent No. 2/complainant has filed an application before the JMFC, Gwalior, on 25-6-2012 alleging that on 27-4-2012 her in-laws turned out her and sent her to Gwalior keeping her jewellery and clothes and told the complainant to ask her parents to arrange Rs. five lakhs. On 6-5-2012 husband of respondent No. 2, Dr. Mahesh Mathur, father-in-law Ramswaroop Mathur, mother-in-law Smt. Sheela Mathur and sister-in-law Geeta Dayal came to Gwalior and asked her family members as to whether amount has been arranged. Then the father of the complainant told that he is not in a position to arrange Rs. five lakhs. On this, Sheela Mathur and Geeta Dayal became annoyed and started shouting that if he was not having the amount, why he has married his daughter. Thereafter, father of the complainant called his son-in-law Sughar Singh and daughter Namita Singh along with Anil Chaudhary and Dharmendra Gaud. When they were pleading that father of the complainant is unable to arrange Rs. five lakhs, then Dr. Mahesh Mathur, Geeta Dayal and Ramswaroop Mathur told that when Rs. five lakhs will be arranged, they may be informed on telephone and then they will take the complainant back. Till then, he will keep his daughter with him. On the basis of this complaint, learned JMFC, Gwalior, has taken the cognizance under section 12 of the Act. Being aggrieved, this petition has been preferred. 3. It is submitted by learned counsel for the petitioners that complaint filed by respondent No. 2/complainant does not disclose prima facie commission of any offence. The allegation of physical and mental torture has been made without mentioning the details of the incident and attributing specific acts. Learned trial Court has failed to consider the declaration deed, which was signed by petitioners No. 1 and 2 at one side and respondent No. 2 and her father at the other, in respect of transaction of dowry/gift at the time of marriage, in which it is clearly mentioned that dowry was neither demanded by the groom's party, nor given by the bride's party. It is further submitted that learned trial Court has straightaway issued the notice in violation of mandatory provisions of section 12 of the Act. It is further contended that before issuing notice learned Magistrate is required to obtain the report from the Protection Officer or Service Provider. It is further submitted that learned Magistrate has also not considered the contents of the application before issuing notice to the petitioners. It is prayed by the learned counsel that complaint deserves to be quashed. 4. Learned Panel Lawyer for respondent No. 1/State as well as learned counsel for respondent No. 2 have supported the order issuing notice against the petitioners. 5. In view of the submissions of learned counsel for the parties, I have perused the record. 6. In order to appreciate the submissions of learned counsel for the parties, it would be proper to refer the provisions of section 12 of the Act which reads as under:- “12. Application to Magistrate: (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. (5) The Magistrate shall endeavour to the dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.” 7. On bare perusal of the aforesaid provision, it becomes clear that before passing an order on application, the Magistrate has to take into consideration the domestic incident report received from Protection Officer or Service Provider. The impugned order reveals that learned Magistrate before issuing notice to the petitioners did not even consider the contents of the application. Section 12 of the Act clearly provides for obtaining domestic incident report. The domestic incident report proforma is given in form I of the Schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The object is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to petitioners as to who were the petitioners who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of stridhan and other documents. This domestic incident report has to be signed by the aggrieved person. The application under section 12 is required to be made in form II of the Rules wherein the details of various kinds of reliefs and expenses are to be given. Section 27 of the Act provides which judicial Magistrate Court can have jurisdiction to entertain an application under section 12 of the Act. 8. The application under section 12 is required to be made in form II of the Rules wherein the details of various kinds of reliefs and expenses are to be given. Section 27 of the Act provides which judicial Magistrate Court can have jurisdiction to entertain an application under section 12 of the Act. 8. The procedure adopted by the learned Magistrate issuing notice to the petitioners without considering the domestic incident report and without going through the contents of the application and without specifying as to why each of the petitioners named by the complainant was to be summoned, is contrary to the Act. 9. In view of the above, the order dated 25-6-2012 passed by the learned Magistrate deserves to be set aside. Hence, it is set aside. The learned Magistrate is directed to consider the domestic incident report as well as the contents of the application and pass an appropriate order. With the aforesaid, petition is disposed of.