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Madhya Pradesh High Court · body

2015 DIGILAW 991 (MP)

RAVI KUMAR BAJPAI v. RENU AWASTHI BAJPAI

2015-09-16

J.K.MAHESHWARI

body2015
JUDGMENT : 1. Invoking the jurisdiction under section 482 of the Code of Criminal Procedure challenging the illegal and arbitrary action of the respondent of instituting a false and frivolous case M.J.C. No. 59/2010 filed before Judicial Magistrate First Class, Hoshangabad under the Protection of Women from Domestic Violence Act, 2005 (in short be called as 'Domestic Violence Act'), petitioners have filed this petition seeking quashment of the same. 2. Petitioner No. 1 is the husband and petitioner No. 2 is the father-in-law of the complainant/respondent. It is said that the marriage of the petitioner No. 1 and respondent was solemnized on 22-2-2008 at Hoshangabad. After marriage, as alleged respondent was subjected to demand of dowry, cruelty and harassment, however, a complaint under section 12 of the Domestic Violence Act was filed on 14-9-2009 in the Court of Judicial Magistrate First Class, Hoshangabad whereupon notices were issued to the petitioners. On receiving the notice, a preliminary objection was filed by the petitioners which was rejected, thereafter reply has also been filed denying the allegations made in the complaint, and now, the case is at the stage of recording the evidence. In the meantime, present petition has been filed seeking quashment of the private complaint. 3. Learned counsel for the petitioners has put forth solitary contention seeking quashment of the private complaint, placing reliance on the judgment of this Court in the case of Shri Rama Singh vs. Smt. Maya Singh and others, reported in 2012(4) MPHT 169 and submits that taking cognizance by the Magistrate and to call upon the petitioners without asking and taking into consideration the report of the Protection Officer is in violation of the proviso to section 12 of the Domestic Violence Act. It is contended that the proviso to section 12 is mandatory as held in the said judgment therefore, without having a report of the Protection Officer, passing an order by the Magistrate to summon the petitioners is not in conformity to law, therefore, the proceedings may be quashed. 4. Learned counsel representing respondent referring to section 23 submits that the Magistrate under the Domestic Violence Act conferred with the power to grant interim and ex parte order. 4. Learned counsel representing respondent referring to section 23 submits that the Magistrate under the Domestic Violence Act conferred with the power to grant interim and ex parte order. However, the connotation "before passing any order on such application the Magistrate shall consider domestic incidence report received by him" would not include an order of taking cognizance or summoning the petitioners and infact the report may be considered at the time of passing the final order. In support of his contention, reliance has been placed on a judgment of this Court in the case of Ajay Kant Sharma and others vs. Smt. Alka Sharma, reported in 2008 Cri.L.J 264. It is also urged that as per section 28(2), the Court may lay down its own procedure for disposal of the application under section 12 or under sub-section (2) of section 23, therefore, it do not preclude the Magistrate in exercising the power to take cognizance on having prima facie satisfied on the basis of material brought before him to summon the respondent, without the report of the Protection Officer or Service Provider. In such circumstances, the order passed by the Magistrate taking cognizance is in accordance with law and this petition seeking quashment in exercise of the powers under section 482 of the Criminal Procedure Code may be dismissed. 5. After hearing learned counsel appearing on behalf of both the parties, on the point in issue as advanced, this Court has earlier considered the scope of section 12 of Domestic Violence Act and its proviso. Firstly in the case of Ajay Kant Sharma (supra), learned Single Judge in Para-3 after referring section 12 has observed as under :- "On perusal of the aforementioned proviso appended to the provision, it appears that before passing any order on the application, it is obligatory on a Magistrate to take into consideration any report received by him from the Protection Officer or the service provider. Neither it is obligatory for a Magistrate to call such report nor it is necessary that before issuance of notice to the petitioners it was obligatory for a Magistrate to consider the report. The words before passing any order provide that any final order on the application and not merely issuance of notice to the respondent/the petitioners herein. The words any report also mention that a report, if any, received by a Magistrate shall be considered. The words before passing any order provide that any final order on the application and not merely issuance of notice to the respondent/the petitioners herein. The words any report also mention that a report, if any, received by a Magistrate shall be considered. Thus, at this stage if the report has not been called or has not been considered, it cannot be a ground for quashing the proceeding." Secondly, in the case of Shri Rama Singh (supra) wherein this Court has considered the judgments of Ajay Kant (supra) and also Tehmina Qureshi vs. Shazia Qureshi, reported in 2010(1) MPHT 133 . In the context of joining other family members as a party in complaint, the Court observed that in the wake of pronouncement of the Supreme Court judgment in the case of Sou. Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade and others, reported in 2011 Cri.L.J. 1687 the view taken by this Court in the case of Ajay Kant Sharma (supra) and Tehmina Qureshi (supra) do not describe the correct proposition of law, however, in this respect, for all practical purposes those two judgments are held as per incuriam. In the judgment of Shri Rama Singh (supra), the judgment of Ajay Kant Sharma (supra) has also been considered in the context of proviso to section 12(1) of Domestic Violence Act. On the said issue the Coordinate Single Bench has referred the proviso and in para-11 observed as thus :- "The proviso ordinarily carves out an exception from the general rule enacted in the main provision. It is also well settled that the word 'any' would mean one or more out of several and includes all (See : Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement, AIR 2010 SC 2239 ). In this view of the matter, even any interlocutory order directing issuance of notice would not be excluded from the rigour of the proviso. It is also well settled that the word 'any' would mean one or more out of several and includes all (See : Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement, AIR 2010 SC 2239 ). In this view of the matter, even any interlocutory order directing issuance of notice would not be excluded from the rigour of the proviso. Accordingly, learned Magistrate ought to have passed a reasoned order holding that prima facie a case existed for asking the petitioners as to why the reliefs, as claimed in the application, should not be granted." In view of the said two pronouncements, it is apparent that in the case of Ajay Kant Sharma (supra), the Court observed that it is not obligatory for a Magistrate to call for the report from the Protection Officer or Service Provider, and also not necessary to consider the said report before issuance of notice. The word "any order" has been interpreted that it denotes the final order and not of an order of issuance of notice. While the Co-ordinate Bench in the other case of Shri Rama Singh (supra) interpreting the word "any order", observed that "any order" would mean one or more out of several and includes all, however, said that the interlocutory order would not be excluded from the rigour of proviso. It is to be noted here that in the subsequent judgment it has not been considered that is it obligatory on the Magistrate to call for a report of Protection Officer or Service Provider at the time of issuance of notice and also not considered the scope of the proviso which in fact is contextual rather than compulsive, however, it is obligatory to this Court to explain the said legal issues. 6. In view of the foregoing, the precise questions in the case called upon to answer is to whether the report of the Protection Officer or the Service Provider, if not available is obligatory to call at the time of issuance of notice on the application under section 12 of the Domestic Violence Act, or its consideration is mandatory on availability of such report? 7. After hearing, to advert the said issue relevant provisions of the Act are necessarily required to be referred viz. 7. After hearing, to advert the said issue relevant provisions of the Act are necessarily required to be referred viz. 2(a) Aggrieved Person; means any woman having relationship with the respondent alleges to have subjected to any act of domestic violence by them; 2(e) Domestic Incident report; means the report submitted by the complainant in the prescribed format regarding domestic violence, whereupon the Judicial Magistrate First Class defined in section 2(i) in exercise of the jurisdiction under Code of Criminal Procedure, of the area wherein the aggrieved person resides or the incident of the domestic violence took place, may take cognizance and may pass orders as specified under sections 18, 19, 21, 22 or under section 23. The Protection Officers may be appointed as per section 8 of the Act by the State Government issuing notification for the area or areas to discharge the duties and functions as specified under section 9, for assisting the Magistrate in discharge of his function under the Act to make a domestic incident report and to make application in the form so prescribed ensuring the aggrieved person to provide the legal aid, medical facility, shelter home and other monetary benefits as contemplated under the Act. The working of the Protection Officer shall be under the control and supervision of the Magistrate and to perform the duties imposed on him by the Magistrate and by the Government under the Act. Similarly, under section 10 on having registration by the Society as a Service Provider, may submit a report in a prescribed form to a Magistrate or to the Protection Officer and to provide the medical facility and also shelter. The Service Provider is having protection under sub-section (3) of section 10 if they have acted in good faith and in discharge of the duties conferred under the Act. 8. Chapter IV of the Domestic Violence Act specifies the Procedure for Obtaining Orders of Reliefs. Under section 12 of the Act, an application is required to be filed before Magistrate. To understand the literal meaning and purpose for resolving the controversy involved in the present case, the provision of section 12 is relevant, therefore, it is quoted hereinbelow :- "Section 12. Application to Magistrate. Under section 12 of the Act, an application is required to be filed before Magistrate. To understand the literal meaning and purpose for resolving the controversy involved in the present case, the provision of section 12 is relevant, therefore, it is quoted hereinbelow :- "Section 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. (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. (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 sub-section (1) within a period of sixty days from the date of its first hearing." This section enshrines that either the aggrieved person himself/herself or Protection Officer or any other person on behalf of the aggrieved person may present a complaint to the Magistrate seeking one or more reliefs as specified under the Act, including order for payment of compensation or damages without prejudice to the rights of such person to institute a suit for compensation or damages for the injuries sustained in the act of domestic violence committed by the respondent. While passing any order on such application under sub-clause (1), the Magistrate shall take into consideration any domestic incident report, received by him from the Protection Officer or the service provider. The amount paid or payable to the aggrieved person by an order of the Magistrate under the Act shall be set off against the amount of degree of compensation or damages passed by any Court in favour of the aggrieved person. Sub-clause (3) provides the particulars to be furnished in the application, as far as possible in the format laid down by the Central Government under rules. Sub-clauses (4) and (5) provide that the Magistrate shall fix the first date of hearing of the application ordinarily within three days of its receipt and shall take endeavour to dispose of the application within sixty days of the first hearing. 9. In view of the aforesaid, it is apparent that as per main body of section 12(1), the application may be presented before the Magistrate seeking one or more reliefs. As per the language of its proviso, upon filing an application, the Magistrate before passing any order, take into consideration any domestic incident report received by him from the Protection Officer or the Service Provider. As per the language of its proviso, upon filing an application, the Magistrate before passing any order, take into consideration any domestic incident report received by him from the Protection Officer or the Service Provider. It is to be noted here that main section 12 contemplates filing of the application by complainant or in his/her behalf and its proviso denotes the act of Court to consider the report if available while passing any order on such application. The proviso starts with "before passing any order on such application" indicates primary adjudication before "any order". As per the judgment of Hon'ble the Supreme Court in the case of Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement and another, reported in AIR 2010 SC 2239 , the word "any order" has been interpreted in the context of Foreign Exchange Management Act wherein an appeal was provided to the High Court against "any decision or order" of the Tribunal. The Apex Court referring the dictionary meaning and also considering the judgment of Ellerine Bros (Pty) Ltd. and another vs. Klinger, reported in 1982(2) AER 737 and the judgment of Satyanarain Biswanath vs. Harakchand Rupchand, reported in AIR 1955 Calcutta 225 and taking note of the use of the said word "any" held that the meaning of the word "any" is one or more out of several and includes all. Thus, in view of the judgment of Hon'ble the Supreme Court, and looking to the use of the word "before" passing "any order" the judgment of this Court in the case of Ajay Kant Sharma (supra) holding that passing any order would mean any final order on the application and not merely issuance of notice to the respondent, is rightly held per incuriam by other Coordinate Bench in the case of Shri Rama Singh (supra). In this context, the judgment of Gauhati High Court in the case of Md. Basit vs. State of Assam and others, reported in 2011 SCC OnLine Gau 249 having persuasive force, is relevant wherein the Court has considered the judgment of Ajay Kant Sharma (supra) and expressed disagreement to the meaning of word "any order" means any final order. The judgment of the Gauhati High Court has further been considered by the Delhi High Court in CRL. M. C. 3083/2011 and CRL. The judgment of the Gauhati High Court has further been considered by the Delhi High Court in CRL. M. C. 3083/2011 and CRL. M. A 10914/2011 in the case of Shambhu Prasad Singh vs. Manjari decided on 17-5-2012, and has approved the view taken by Gauhati High Court. Thus, concluded that the word "before passing any order" used in the proviso of section 12 would include the order of initiation of the proceedings or summoning of the accused. 10. The aforesaid analogy finds support from the other provisions of Chapter IV whereby as per section 13 on filing of application, a notice of the date of hearing fixed by the Magistrate may be served through the Protection Officer by a mode as prescribed. However, on taking cognizance by a Magistrate, the notice of the application is required to be served on the respondent and upon service, the Magistrate shall hold a counselling at any stage of the proceedings. As per section 18 after giving opportunity to the aggrieved person or to the respondent, of being heard and on having prima facie satisfied that domestic violence has taken place or is likely to take place, may pass protection order granting reliefs as specified therein. Similarly, as per section 19 while disposing of an application under sub-section (1) of section 12, the order of residence may be passed in favour of aggrieved person to grant relief to such persons. The Magistrate may grant the monetary reliefs as per section 20 and also grant temporary custody of any child or children as per section 21, and vide section 22 compensation and damages for the injuries to the aggrieved person may also be granted. As per section 23(1) Magistrate is conferred with a power to pass any interim order as he deems fit. As per section 23(2) the powers to pass ex parte order on going through the contents of the application having prima facie disclosed the offence, to pass any order under sections 18, 19, 20, 21 and 22. As per section 23(1) Magistrate is conferred with a power to pass any interim order as he deems fit. As per section 23(2) the powers to pass ex parte order on going through the contents of the application having prima facie disclosed the offence, to pass any order under sections 18, 19, 20, 21 and 22. Section 28 specifies what procedure ought to be followed, however, as per sub-section (1), the proceedings of sections 12, 18, 19, 20, 21 and 23 and of section 31 shall be governed by the provisions of Code of Criminal Procedure, 1973 but as per sub-section (2) of section 28 it is clear that sub-section (1) shall not prevent the Court from laying down own procedure for disposal of the application under section 12 or under sub-section (2) of section 23. Here it is relevant to observe that section 12 only contemplates that who can file a complaint and what reliefs can be sought for. If these pre-conditions are satisfied, the Magistrate may take cognizance on the complaint, if on fact prima facie case is made out to summon the respondent. Looking to the relaxation specified under sub-section (2) of section 28 unlike section 200 of Criminal Procedure Code, there is no requirement to record preliminary statement of the aggrieved person on filing the complaint and prior to taking the cognizance thereon. The proviso to section 12(1) mandates to Magistrate to take into consideration any domestic incident report received by him either from a Protection Officer or from Service Provider. Thus, the rider specified in the proviso of section 12(1) is for consideration of the report received of domestic incident either of the Protection Officer or of Service Provider. This proviso do not contemplate that before passing "any order" the Magistrate is bound to call for the report from Protection Officer or Service Provider. It also do not qualify that Magistrate can take cognizance only when the report is received and considered. Thus, generous meaning of proviso in common parlance is that on receipt of the report of the Protection Officer or Service Provider before passing any order, it be considered by the Magistrate but it is not obligatory on the Magistrate to call for such report, prior to passing any order. Otherwise in section 23, the power to pass ex parte orders would not have been conferred to the Magistrate. Otherwise in section 23, the power to pass ex parte orders would not have been conferred to the Magistrate. Such expression of the proviso as discussed hereinabove finds support from the judgment of Md. Basit (supra) of Gauhati High Court and also of Delhi High Court in the case of Shambhu Prasad Singh (supra) coupled with sub-sections (1) and (2) of section 28 of the Act. In other words looking to the aims and object of the Domestic Violence Act and for the purpose to which it was enacted, the intention of the legislature was to provide immediate relief to aggrieved persons by indulgence of the Court. Therefore, under the proviso even without having a report of the Protection Officer looking to the facts of the case and material available on record, Magistrate may take cognizance looking to the allegations and such proviso do not put any embargo to not to take any cognizance without such report. 11. The Central Government in exercise of the power of section 37 of the Domestic Violence Act framed the rules, which are known as Protection of Women from Domestic Violence Rules, 2006. Rule 4 indicates that any person having reasons to believe regarding an incident of domestic violence may furnish the information to the Protection Officer which shall be acknowledged by him and upon a complaint of the domestic violence, the report be prepared by him in Form-I and be submitted before the Magistrate supplying a copy thereof to the Police Officer of the local jurisdiction. Rule 6 makes it clear that every application of the aggrieved person under section 12 shall be in Form-II or as nearly as possible thereto specifying the reliefs claimed thereunder. The aggrieved person may seek assistance of the Protection Officer in preparing the application under sub-rule (1) and forward the same to the concerned Magistrate. However, Rule 6(2) makes it clear that on filing an application by aggrieved person, the assistance may be provided by the Protection Officer. On plain reading of section 12 and the rules, it is clear that to pass an appropriate order upon the application filed by (the aggrieved person) i.e. the victim of domestic violence, is to consider the report of Protection Officer if received by Magistrate. On plain reading of section 12 and the rules, it is clear that to pass an appropriate order upon the application filed by (the aggrieved person) i.e. the victim of domestic violence, is to consider the report of Protection Officer if received by Magistrate. In another category, if on receiving an information by the Protection Officer, a complaint is made by him then he shall submit his report regarding the domestic incident came to his knowledge. In the said case, the report would be available, however, it is obligatory on the Court to consider the same prior to taking the cognizance. Thus, if the legislative intent was that to call for a report from Protection Officer as a pre-condition by the Magistrate to act upon a complaint of aggrieved person then it would have been expressed that intention emphasizing by the words in the main section. In the said context, the judgment of Hon'ble Supreme Court in the case of A. N. Sehgal and others vs. Raje Ram Sheoram and others, reported in AIR 1991 SC 1406 is relevant. Hon'ble Apex Court has said that - "It is cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect." In the case of Dwarika Prasad vs. Dwarka Das Saraf, reported in (1976) 1 SCC 128 Justice V. R. Krishna Iyer speaking for the Bench explained on the point of interpretation of the statute, internal aids, proviso and scope thereof. The Court held that - "Though many functions have been assigned for provisos one has to be selective having regard to the text and context of the statute. If, on fair construction, the principal provision is clear, a proviso cannot expand or limit it. Sometime, a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges, then it ought to be read to such extent. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction." In Maulavi Hussein Haji Abraham Umarji vs. State of Gujarat, reported in AIR 2004 SC 3946 , the Apex Court explained that how the proviso ought to be considered with an enactment. The Court said - "The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. The Court said - "The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. When one finds to a proviso to a section the natural presumption is that but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. Thus, as a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule." 12. In view of the foregoing discussion, the ambiguity arose by the judgment of Ajay Kant Sharma, Tehmina Qureshi and Shri Rama Singh (supra) is hereby explained that the judgment of Ajay Kant Sharma (supra) incorporating the meaning of "any order" which means final order is held to be per incuriam in the light of the judgment of Apex Court in the case of Raj Kumar Shivhare (supra) and to such extent the judgment of Shri Rama Singh (supra) is held to be good. Simultaneously the finding recorded that it is not necessary to the Magistrate to consider the report of the Protection Officer or Service Provider before issuance of the notice is also not held to be good. But the findings in the said case holding that it is not obligatory for a Magistrate to call for the report at the stage of taking cognizance may be held to be good and in consonance to the spirit of the Act. In-fact, if the report of the Protection Officer or Service Provider is available then its consideration is obligatory even at the stage of issuance of notice or at the time of passing final order as the case may be, affording opportunity to other side. In-fact, if the report of the Protection Officer or Service Provider is available then its consideration is obligatory even at the stage of issuance of notice or at the time of passing final order as the case may be, affording opportunity to other side. It may be explained by example that under section 12 on behalf of the aggrieved person if any application is filed by the Protection Officer or Service Provider attaching a report then it is obligatory on the Magistrate to consider the same at the time of issuance of summons but in case the complaint is filed by the complainant without having report then Magistrate is not bound to call for or await the report of the Protection Officer, and defer the proceeding awaiting the report before passing an order taking cognizance. Simultaneously, it is to be further held that in Tehmina Qureshi (supra) relying upon the judgment of Ajay Kant Sharma (supra) the interpretation of section 2(q) made by this Court is against the judgment of Hon'ble Apex Court in the case of Sandhya Manoj Wankhade (supra). In view of the discussion made hereinabove the judgment of Ajay Kant Sharma (supra) is held to be per incuriam, except on the point that calling of the report from the Protection Officer at the stage of taking cognizance is not obligatory. 13. In addition to the aforesaid observations, the judgment of Shri Rama Singh (supra) in para-11 is also required to be explained, wherein while interpreting the word "any order", the Court observed that it would mean one or more out of several and includes all, but later observed that even an interlocutory order "asking issuance of notice would not preclude from the rigour of proviso", meaning thereby to pass an interlocutory order of summoning the accused, the consideration of the report is obligatory. But looking to the above discussion, it is explained that in case of non-availability of the report on a complaint filed by the aggrieved person, if the Magistrate is prima facie satisfied on the material brought before him, cognizance may be taken without awaiting report and the said complaint shall not be dismissed on the ground that the report of the Protection Officer has not considered at the time of taking cognizance. 14. 14. In consequence to the above discussion and on plain reading of section 12 of the Domestic Violence Act, as a whole the complaint can be presented by an aggrieved person, Protection Officer or Service Provider before the Magistrate seeking one or more reliefs as specified under sections 18, 19, 20, 21, 22, 23 and 31. Upon filing of such an application, the procedure enumerated in Code of Criminal Procedure, 1973 be followed and the Court is not prevented from laying down its own procedure for disposal of an application under section 12 or sub-section (2) of section 23. On plain reading of proviso attached to section 12(1), it is clear that "before" passing "any order" on such application under sub-section (1) of section 12, if the report of Protection Officer is available, the Magistrate shall take into consideration. Thus, word used "the Magistrate shall take into consideration" is only with respect to a report if it is available and not to call for it at the time of taking cognizance. However, the obligation of a Magistrate is only to the extent to consider the report if available with a view to affording an opportunity to other side. Thus, the question as framed in Paragraph 6 of the order is answered in view of the discussion made hereinabove. 15. In the said context, the argument advanced by the learned counsel for the petitioners to quash the complaint filed by the respondent on account of taking cognizance by the Magistrate without having a report of the Protection Officer is devoid of any merit, hence repelled. In the present case the evidence is being recorded, however, the Magistrate is duty bound to decide the complaint filed by the aggrieved person as early as possible within a period of two months from the date of production of certified copy of this order. 16. Accordingly, the petition filed by the petitioners seeking quashment of the proceedings is devoid of any merit, hence dismissed. The judgment of Tehmina Qureshi (supra) is held per incuriam. The judgment of Ajay Kant Sharma (supra) is also held per incuriam to the extent indicated hereinabove. Simultaneously, the judgment of Shri Rama Singh (supra) is also explained. In the facts of the case, petitioners shall bear the expense of the respondent which is quantified Rs. 5000/-.