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Madhya Pradesh High Court · body

2014 DIGILAW 1179 (MP)

Dharmendra v. State of M. P.

2014-09-19

D.K.PALIWAL

body2014
JUDGMENT D.K. Paliwal, J. 1. Heard. 2. This petition has been filed under section 482 of Cr.P.C. 3. It is submitted that the respondent no. 2 has filed an application under section 12 of Protection of Women from Domestic Violence Act 2005 before the Judicial Magistrate First Class, Gwalior. The petitioners have not committed any offence regarding the harassment of the complainant-respondent no. 2. The marriage of the petitioner no. 1 took place on 24.2.2011 and the respondent no. 2 residing only few days with the petitioner no. 1, thereafter she came back to Gwalior and she is not willing to continue the marital relations with petitioner no. 1. The respondent no. 2 has also instituted an another case under section 498-A of IPC against the petitioners, however, she has filed an application under section 125 of Cr.P.C. and now she has filed this application. It is submitted that the learned Trial Court has taken cognizance and issued the notice of summons seeking presence of the petitioners. No report of protection officer has been received, therefore, learned counsel for the petitioners prayed for quashing of the complaint. 4. On perusal of the order dated 18.12.2011 it appears that the complaint has been filed by the respondent no. 1 under section 12 of the Protection of Women from Domestic Violence Act. 5. The learned Magistrate after going through the complaint has taken cognizance and issued summon and secured the presence of the petitioners. It appears that the learned Magistrate has not followed the mandatory procedure provided under 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 relief's 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. (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 dispose of every application made under subsection (1) within a period of sixty days from the date of its first hearing." 6. 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 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 1 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 domestic incident report proforma is given in form 1 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 2 of the Rules wherein the details of various kinds of relief's and expenses are to be given. Section 27 of the Act provides which judicial Magistrate Court can have jurisdiction to entertain an application under Section12 of the Act. 7. The procedure adopted by the learned Magistrate issuing notice to the petitioners 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. 8. In view of the aforesaid, this petition is allowed and the complaint filed by the respondent no. 2 against the petitioners is hereby quashed.