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2015 DIGILAW 66 (GAU)

Durga Shankar Singh v. Anju Singh

2015-01-22

C.R.SARMA

body2015
JUDGMENT C.R. Sarma, J. 1. Heard Mr. B.D. Konwar, learned senior Counsel assisted by Mr. R. Kalita, learned counsel appearing for the petitioners. Also heard Mr. A. Choudhury, learned counsel appearing for the respondent. By this application filed under Section 482 Cr. P.C., the petitioners have challenged the judgment and order, dated 30.09.2013, passed by the learned Addl. Sessions Judge, No. 2, Kamrup, Guwahati, in Criminal Appeal No. 34/2013. 2. The respondent, claiming to be the wife of Sri Durga Sankar Singh i.e. the Petitioner No. 1 filed a complaint with the District Social Welfare and Protection Officer under Domestic Violence Act, 2005 (hereinafter called 'the Act'), alleging domestic violence against her said husband and other members of the family of her in-laws. On receipt of the said complaint the District Social Welfare and protection officer forwarded the complaint to the learned CJM, Kamrup, Guwahati in Form-I. After receipt of the said complaint, along with report of the District Social Welfare and Protection Officer, the learned Magistrate issued notices and the petitioners in this Criminal Petition i.e. the respondents in the proceeding under the Act, by filing written statement contested the claim of the complainant i.e. the respondent, in this case. The petitioners also filed a separate application challenging the maintainability of the said proceeding. The learned Special Judicial Magistrate, Kamrup, Guwahati, by his order, dated 24.01.2013, rejected the present petitioners application observing that filing of the complaint in Form-II was not mandatory inasmuch as the word "may has been used" in Section 12 of the Act, 2005. 3. Aggrieved by the said order, the petitioner, approached the learned Sessions Judge, by filing an appeal, under Section 29 of the Act. The learned Sessions Judge, while dismissing the appeal, by his judgment and order, dated 30.09.2013, granted time to the complainant (present respondent) in complaint case No. 50m/2009, to file formal application, under Section 12 of the Act, preferably in Form II along with the required affidavit within 30 days from the date of appearance before the trial Court. It was made clear that, in the event of failure to file written application, under Section 12 within the stipulated period, the entire proceeding would stand dismissed. With the above direction, the learned Addl. Sessions Judge, remanded the matter to the trial Court. 4. It was made clear that, in the event of failure to file written application, under Section 12 within the stipulated period, the entire proceeding would stand dismissed. With the above direction, the learned Addl. Sessions Judge, remanded the matter to the trial Court. 4. Dissatisfied with the said order of remand, the opposite party, in complaint case No. 50m/2009, as petitioners, have come up with this application under Section 482 Cr. P.C. 5. Mr. B.D. Konwar, learned Senior Counsel, appearing for the petitioners, has submitted that the learned Sessions Judge, committed error by remanding the matter and giving opportunity to the respondents, to file application under Section 12 of the Act, in appropriate Form that too after about 5 years of the dispute. It has also been submitted that, in view of pendency of several other proceedings including the application under Section 125 Cr. P.C. and the divorce suit pending before the appropriate forum the proceeding under Section 12 of the Act is not maintainable. 6. Refuting the said argument, advanced by the learned Senior Counsel for the petitioners, Mr. A. Choudhury, learned counsel, appearing for the respondent, has submitted that it is not mandatory to file an application under section 12 of the Act by strictly using the form prescribed thereof. The learned counsel appearing for the respondent has submitted that, in view of the provision prescribed by Section 5, the Magistrate has also a duty to inform the aggrieved person to file the application in proper form. Section 5 of the Act reads as follows:- "Duties of police officers, service providers' and Magistrate. A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person:- (a) Of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act. (b) Of the availability of services of service providers. (c) Of the availability of services of the Protection Officers. (d) Of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987). (b) Of the availability of services of service providers. (c) Of the availability of services of the Protection Officers. (d) Of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987). (e) Of her right to file a complaint under Section 498-A of the Indian Penal Code (45 of 1860), wherever relevant: Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence." 7. As provided by Section 5, a Magistrate, after receipt of an information regarding domestic violence, has a duty to inform the aggrieved person of her right to make an application by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act. 8. In the present case, admittedly, the aggrieved person i.e. the respondent did not file any application under Section 12 of the Act in proper Form. The Form for filing application under Section 12 has been prescribed by Rule 6 of the Act. 9. In the present case, the petitioner approached the District Social Welfare and Protection Officer and, on receipt of the complaint from the aggrieved person the District Social Welfare and protection Officer forwarded the matter to the learned CJM. The learned CJM, on receipt of the report from the said District Welfare Officer who is also the Protection Officer, under the Act, issued process without, complying with the requirement under Section 5 of the Act. In the absence of filing any application in proper form by the aggrieved person or the Protection Officer, it was the duty of the learned Magistrate to inform the aggrieved person to file her application in proper form. The learned Sessions Judge by the impugned order, while remanding the matter to the trial Court, has rightly held that Court cannot proceed without an application under Section 12 of the Act. 10. In view of the provision prescribed by Section 5 of the Act, in my considered opinion, the learned Sessions Judge has committed no error or illegality, by remanding the matter to the trial Court, granting an opportunity to the aggrieved person to file an application under Section 12 in Form II of the Act. 10. In view of the provision prescribed by Section 5 of the Act, in my considered opinion, the learned Sessions Judge has committed no error or illegality, by remanding the matter to the trial Court, granting an opportunity to the aggrieved person to file an application under Section 12 in Form II of the Act. 11. In view of what has been discussed above, I have no hesitation in holding that the impugned order, passed by the learned Sessions Judge suffers from no gross illegality or error or perversity resulting miscarriage of justice. Therefore, I find no sufficient merit in this petition, requiring interference in exercise of jurisdiction under Section 482 Cr. P.C. Accordingly, this criminal petition is dismissed. Considering the delay in disposal of the matter the learned Judicial Magistrate is directed to dispose of the matter as early as possible by giving opportunity to both the parties. The parties shall appear before the trial Court within a period of 20 days from today. Petition Dismissed.