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Madhya Pradesh High Court · body

2017 DIGILAW 936 (MP)

Ujjwal Mishra v. Aaditi Mishra

2017-08-28

SUJOY PAUL

body2017
ORDER : Sujoy Paul, J. This petition filed under section 482 of the Code of Criminal Procedure, 1973 challenges the order dated 2.9.2014 whereby the court below has entertained an application preferred by the respondent under section 12 of the Protection of Women From Domestic Violence Act, 2005 (for short 'the Act'). Learned counsel for the petitioner challenged this order by raising three points. Firstly, as per proviso to Section 12 of the Act, the Magistrate could have entertained the application only after obtaining and considering the domestic incident report from Protection Officer or the Service Provider. The impugned order is passed without obtaining the said report. The said report is directed to be produced afterwords which is evident from the order dated 2.9.2014 itself. Secondly, the similar complain of respondent (Annexure A/3) filed on 25.6.2013 was dismissed by the court on 15.4.2014 and hence second complaint of similar nature was not tenable. Thirdly, the allegations against the petitioner are omnibus in nature which warrants no cognizance. 2. Prayer is opposed by Shri Ahiwasi. He supported the impugned order and relied upon certain judgments in his favour. He read out the entire complaint to contend that prima-facie allegations of domestic violence is M.Cr. C. No. 12089 of 2016 shown in the complaint. Reliance is placed on order dated 15.4.2014 (page 16) to show that earlier application was dismissed because it was not pressed. He submits that earlier parties made efforts to amicably resolve the dispute but since dispute could not be resolved and petitioner continued to harass the petitioner, second complain was filed which is not barred. 3. No other point is raised by the learned counsel for the parties. 4. I have heard the learned counsel for the parties and perused the record. As to point No. 1 5. 3. No other point is raised by the learned counsel for the parties. 4. I have heard the learned counsel for the parties and perused the record. As to point No. 1 5. Before dealing with this aspect, it is apt to quote relevant portion 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." The core issue is whether court below was justified in issuing notices on an application filed by the respondent when admittedly domestic incident report was not received by it. This point is no more res integra. In Ravi Kumar Bajpai v. Renu Awasthi Bajpai, 2016(1) MPLJ (Cri.) 563, this court has held as under: "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 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. Such expression of the proviso as discussed here-in-above finds support from the judgment of Md. Basit (Supra) of Gauhati High Court and also of Delhi High Court in the case of Shambh Prasad Singh (supra) coupled with sub-section (1) and (2) of Section 28 of the Act. Such expression of the proviso as discussed here-in-above finds support from the judgment of Md. Basit (Supra) of Gauhati High Court and also of Delhi High Court in the case of Shambh Prasad Singh (supra) coupled with sub-section (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." In para 12 of the judgment, this court again opined that calling of report from Protection Officer at the stage of taking cognizance is not obligatory. In the light of this judgment, the first point raised by the petitioner must fail. As to point No. 2 6. The second point relates to tenability of second application. The first application is admittedly withdrawn and it was not decided on merits. In 2001 (2) SCC 570 (Jatinder Singh and others v. Ranjit Kaur), the Apex Court held that if the dismissal of the complaint was not on merit but on default of the complainant to be present, there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different. In the light of the aforesaid judgment, it is clear that there is no legal bar in entertaining the second complaint/application if first application is not decided on merits. As to point No. 3 7. So far third point is concerned, it is also devoid of substance. By a plain reading of the instant complaint, it cannot be said that allegations are omnibus and application was not entertain able. 8. As analyzed above, I am unable to hold that court below has committed any jurisdictional error. There is no abuse of process of court while passing the impugned order. In absence of any ingredients on which interference can be made, interference is declined. 8. As analyzed above, I am unable to hold that court below has committed any jurisdictional error. There is no abuse of process of court while passing the impugned order. In absence of any ingredients on which interference can be made, interference is declined. It is made clear that this court has not expressed any opinion on merits of the case. Petition is devoid of substance and is hereby dismissed.