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2020 DIGILAW 1299 (ALL)

Manoj Kumar Yadav v. State of U. P.

2020-11-09

ALOK MATHUR

body2020
JUDGMENT : 1. Heard Sri P.K. Mishra, learned counsel for applicant as well as Sri Balkeshwar Srivastava, learned A.G.A. for State. 2. By means of instant application under Section 482 Cr.P.C., the applicant has assailed the order dated 28.09.2020 passed by Judicial Magistrate, III, Faizabad in Complaint Case No. 1720/18 (Kiran Yadav Vs. Manoj) under Section 12 of Protection of Women From Domestic Violence Act, 2005 P.S. Mahila Thana, Faizabad. 3. It has been submitted by learned counsel for applicant that respondent No. 2 is legally wedded wife and respondent No. 3 is his minor daughter and the applicant and the respondent Nos. 2 were married on 06.05.2013. It has been submitted that respondent No. 2 preferred a complaint in the Court of Judicial Magistrate-III, Faizabad under Section 12 of the Domestic violence Act, 2005 wherein she stated that applicant and respondent No. 2 were married on 06.05.2013 and the Vidai was performed on 07.05.2013 and the at time of Vidai, the father of the complainant had paid Rs. one lakh fifty one thousand and gifted ornaments and household etc. but the applicant was not satisfied with the dowry and made demand for further amount of Rs. 2 lakhs. 4. In the light of the fact that the demand of dowry was not fulfilled then applicant started harassing the complainant. It has also been alleged that mother-in-law of respondent No. 2 threw hot Ghee upon the leg of respondent No. 2 as a result of which she sustained serious injury at that time when she was pregnant. She gave birth to her daughter on 20.10.2015. Thereafter, respondent No. 2 had moved an application under Section 125 Cr.P.C. before the Family Court, Faizabad seeking maintenance and has also filed a Criminal Complaint against the applicant and his family members before Judicial Magistrate-III, Faizabad under Section 198A/323/504/506 I.P.C. and 3/4 D.P.Act. 5. Family Court by means of order dated 30.05.2018 and 01.05.2019 directed the applicant to pay Rs. 4,000/-per month as interim maintenance to respondent Nos. 2 & 3. It has further been submitted that she also filed a Criminal Revision No. 592/2019 before this Court where certain directions have been issued by this Court for payment of amount of maintenance to the respondent No. 2. 6. 4,000/-per month as interim maintenance to respondent Nos. 2 & 3. It has further been submitted that she also filed a Criminal Revision No. 592/2019 before this Court where certain directions have been issued by this Court for payment of amount of maintenance to the respondent No. 2. 6. With regard to the controversy in the present dispute, it has been submitted that respondent No. 2 moved an application on 07.05.2019 under Section 19 of Domestic violence Act, 2005 before Judicial Magistrate -III, Faizabad along with a complaint under Section 12 of Domestic violence Act, 2005 seeking appropriate direction to the applicant to provide for her residence. The applicant opposed the said application and filed his objections before the trial court and the application under Section 12 read with Section 19 of Domestic violence Act, 2005 was rejected by the trial court by means of order dated 13.08.2019. 7. Against the said order, an appeal was filed under Section 29 of the Domestic violence Act, 2005 by the respondent No. 2 and the same was allowed by the Additional District and Sessions Judge, Faizabad on 08.07.2020 whereby he set aside the order dated 13.08.2019 and remanded the matter to be decided on merits. 8. After remission of the said matter, the Magistrate has passed the order dated 28.09.2020 which has been impugned in the present application. 9. By means of the impugned order, the Judicial Magistrate-III, Faizabad has allowed the application of respondent No. 2 providing for her to reside with the applicant failing which he has been directed to pay sum of Rs. 4,000/-per month from which she can rent suitable accommodation for herself and her daughter. The aforesaid order has been assailed by the counsel for applicant by means of present application under Section 482 Cr.P.C. 10. Learned counsel for applicant has assailed the order mainly on three grounds. Firstly, that the said order has been passed without obtaining a report as prescribed under Section 12 of the Protection of Women from Domestic violence Act wherein it has been provided that the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the Service Provider. It has been submitted that in the instant case no report has been submitted by Protection Officer or the Service Provider. It has been submitted that in the instant case no report has been submitted by Protection Officer or the Service Provider. Secondly, applicant has contended that no application under Section 23 was moved by the respondent No. 2 and therefore no no order could have been passed in favour of the applicant in exercise of power under Section 12 of the Domestic Violence Act and thirdly, the court below has erroneously allowed the application of the applicant without taking into consideration the provisions of Section 12(2) of the D.V. Act and without considering that the applicant has already been directed under proceeding under Section 125 Cr.P.C. to pay an amount of Rs. 4,000/-per month as maintenance which he is already paying. 11. With regard to first contention raised by learned counsel for applicant that the impugned order has been passed without seeking a report as prescribed under Section 19 of Protection of Women From Domestic Violence Act, 2005, it has been submitted that it is mandatory for the Magistrate to seek such report before passing any order under Section 19 of Protection of Women From Domestic Violence Act, 2005 and in absence of said report the impugned order is illegal and arbitrary and beyond powers granted to the Magistrate and deserves to be set aside. 12. It is noteworthy that Section 12(1) does not mandate that an application seeking relief under the Act be accompanied with the Domestic Incident Report (hereinafter referred to as ‘DIR’) or even that it should be moved by a protection officer. Even Rule 6 which stipulates the form and manner of making application to the Magistrate does not require that the Domestic Incident Report must accompany an application for relief made under Section 12 of the Act. It is only the proviso to Section 12 of the Protection of Women from Domestic Violence Act, 2005, which mandate that the Magistrate shall consider the Domestic Incident Report received by him from the Protection Officer or the Service Provider. No obligation to call for Domestic Incident Report (DIR) has been imposed upon the Magistrate. Since the petition is filed before the Magistrate under Section12 of the Act, the Magistrate is empowered to issue summons to the respondents. 13. No obligation to call for Domestic Incident Report (DIR) has been imposed upon the Magistrate. Since the petition is filed before the Magistrate under Section12 of the Act, the Magistrate is empowered to issue summons to the respondents. 13. The proviso to Section 12 of Protection of Women From Domestic Violence Act, 2005 has been duly considered and interpreted by this court as well as several other High Courts. It has been so interpreted as to mean that the trial court is under obligation to consider the report of the Protection Officer or the Service Provider while considering the application under Section 19 of Protection of Women From Domestic Violence Act, 2005, if the same is available on record. In case there is no report available on record then the Magistrate is not under any obligation to call for the same before passing any orders on an application under Section 19 of Protection of Women From Domestic Violence Act, 2005. This aspect of the matter has been duly considered by the Additional District and Sessions Judge, Court No. 11, Faizabad while deciding the revision petition filed by respondent No. 2 where the applicant was also heard. I do not find any infirmity with this aspect of the matter as dealt by the trial court. 14. After remanding the proceedings to the trial court, the impugned order dated 28.09.2020 has been passed by the Judicial magistrate, Faizabad where after hearing the applicant has considered the entire factual matrix has passed the order providing for residence and payment of Rs. 4,000/- per month as interim measure. 15. It was also submitted that before the Judicial Magistrate, the applicant had also filed his objections on 06.08.2009 which were duly considered by him. It has clearly been borne out from the impugned order dated 28.09.2020, that in the objections preferred by the applicant he had not raised any issue with regard to non-consideration of the report as provided under Section 12 of the Domestic Violence Act by the Protection Officer/Service Provider. No such objection was raised before the trial court and therefore it is not open for the applicant to raise it for the first time before this Court in proceedings under Section 482 Cr.P.C., unless he can satisfactorily demonstrate that he was precluded from raising the said issue before the trial court. 16. No such objection was raised before the trial court and therefore it is not open for the applicant to raise it for the first time before this Court in proceedings under Section 482 Cr.P.C., unless he can satisfactorily demonstrate that he was precluded from raising the said issue before the trial court. 16. The legal aspect of the said matter has already been considered above and it has been brought on record that there was no report of the Protection Officer/Service provider under Section 12 of the Domestic Violence Act and therefore the same could not have been considered by the Magistrate while passing the impugned order. 17. A perusal of the Protection of women from Domestic violence Act, 2005 as well as the rules of 2006 would indicate that an aggrieved person as described in Section 2(a) can either move an application herself to the magistrate or may give information to the protection officer with regard to the commission of an act of domestic violence. In case the application/information is given to the protection officer he shall make a domestic incidents report in the manner prescribed to the magistrate and also forward a copy thereof to the police officer in charge of the police station within local limits of postal section domestic violence is alleged to have been committed. 18. According to rule 6 of the rules of 2006 of the application by the aggrieved person shall be in form-II or nearly as possible thereto and in case assistance of protection officer is sought by the aggrieved person for filing of the application that the same is has to be in form-III. 19. The magistrate is seized of a proceedings initiated on the basis of an application submitted by the aggrieved person under Section 12 of the Domestic violence Act may pass suitable residence orders under Section 19 of the act satisfied that the domestic violence has taken place and is empowered to pass any of the orders as provided for in sub-clause (a) to (f) of Section 19 of the Act. 20. With regard to ex parte orders, section 23 provides that in any proceedings before the magistrate, he may pass such interim orders as he deems just and proper. 20. With regard to ex parte orders, section 23 provides that in any proceedings before the magistrate, he may pass such interim orders as he deems just and proper. From a bare reading of Section 23 it is clear that no separate application is required to be filed for exercise of powers under Section 23 of the Act. The magistrate has to act on the application filed under Section 12 of the Act and in cases he is satisfied that the application discloses that the respondent is committing or has committed an act of domestic violence or there is likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order. 21. While interpreting the provisions of domestic violence act, which is an piece of social legislation widest amplitude has to be given in interpreting the provisions to see that the objective of the legislation is fulfilled, rather than limiting the exercise of the power of the magistrate on the basis of mere technicalities. The argument of the counsel for the applicant is bereft of any reason with regard to the fact that the respondent should have given an application under Section 23 which would have only enabled the Magistrate tate to exercise the powers therein. The 2nd ground raised by the applicant is therefore bereift of merit and is accordingly rejected. 23. The argument of the counsel for the applicant is bereft of any reason with regard to the fact that the respondent should have given an application under Section 23 which would have only enabled the Magistrate tate to exercise the powers therein. The 2nd ground raised by the applicant is therefore bereift of merit and is accordingly rejected. 23. With regard to the third and last contention raised by learned counsel for applicant that the application of respondent No. 2 has been allowed without taking into consideration the provisions of Section 12(2) of the Act wherein it has been provided that "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 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.” 24. With regard to the said contention of the applicant, it is noticed that the application under Section 12 of the Act has been considered and decided by the learned Magistrate while directing the applicant to provide residence to the respondent No. 2 failing which he has to give an amount of Rs. 4,000/-per month as a measure of interim relief to the respondent No. 2 so that she can find a suitable accommodation/ residence. 25. The maintenance granted under Section 125 Cr.P.C. is different from the relief granted to the respondent No. 2 by means of impugned order and therefore Section 12(2) of the Act is not attracted in the facts of the present case. 26. 25. The maintenance granted under Section 125 Cr.P.C. is different from the relief granted to the respondent No. 2 by means of impugned order and therefore Section 12(2) of the Act is not attracted in the facts of the present case. 26. The order under Section 125 Cr.P.C. and residence order U/S 19 of the Domestic violence Act operate in two different spheres, and grant of maintenance U/S 125 Cr.P.C. cannot limit the grant of relief U/S 19 D.V. Act which provide for residence for the aggrieved person by invoking provision of Section 12(2) of D.V. Act. The arguments of the petitioner is clearly misconceived. Section 12 (2) of the Domestic violence Act would come into play only when the court is considering the application for grant of payment of compensation or damages. While passing an order under Section 19 of D.V. Act, the Magistrate would grant relief envisaged in Sub-Clause (a) to (f) which clearly do not provide for payment of compensation or damages, and therefore the impugned order passed U/s 19 of the Act providing for residency of the aggrieved person cannot be said to be violation of Section 12(2) of the Act. 27. I do not find any infirmity with the impugned order dated 28.09.2020. The present application under Section 482 Cr.P.C. lacks merit and deserves no interference by this Court, therefore, the present application under Section 482 Cr.P.C. is dismissed.