Court No. - 83
Case :- APPLICATION U/S 482 No. - 10737 of 2021 Applicant :- Ishtiyaq Ahmad And 8 Others Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Tripathi B.G. Bhai Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Tripathi B.G. Bhai, learned counsel for applicants and learned AGA for State.
2. Perused the record.
3. This application under section 482 Cr.PC has been filed challenging entire proceedings of Criminal Case No. 387 of 2020 (Sana Praveen and another Vs. Faraz Ahmad @ Faisal and others) under Section 12 Protection of Women From Domestic Violence Act, 2005 (herein after referred to as the Act, 2005), P.S.-Bhawaniganj, Dumariyaganj, District-Siddharth Nagar, now pending in the court of Judicial Magistrate, Dumariyaganj, Siddhar Nagar.
4. Mr. Tripathi B.G. Bhai, learned counsel for applicants contends that complainant/opposite party-2 Sana Praveen alongwith her minor daughter Huriya Faraz filed a complaint dated 07.12.2020 under Section 12 of the Act, 2005 and same was registered as Criminal Case No. 387 of 2020 (Sana Praveen and another Vs. Faraz Ahmad @ Faisal and others) under Section 12 of the Act, 2005, P.S.-Bhawaniganj, Dumariyaganj, District-Siddharth Nagar. In the aforesaid complaint, apart from husband/father of opposite parties, various others have also been implicated as accused.
5. On the aforesaid complaint, concerned Magistrate passed an order dated 09.12.2020, whereby notices were issued to opposite parties in aforesaid complaint i.e. applicants herein and a report form District Protection Officer was also called for.
6. Learned counsel for applicants thus contends that order dated 09.12.2020 passed by court below is manifestly illegal and without jurisdiction. He has invited attention of Court to Provisions contained in Section 12 of the Act, 2005, 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.
(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 s uch 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 sub-section (1) within a period of sixty days from the date of its first hearing."
7. Placing reliance upon proviso to Sub-section (1) of Section 12 of Act, 2005, learned counsel for applicants contends that no order could have been passed by court below without obtaining a report from District Protection Officer. Consequently order dated 09.12.2020 passed by court below is manifestly illegal and therefore, liable to be quashed by this Court.
8. It is next contended that apart from applicant-1, who is husband/father of complainant, various other family members have also been impleaded in the complaint. Court below without ascertaining, as to whether proceedings under the Act, 2005 can be initiated or not against such accused, issued notices to all accused. He therefore contends that entire proceedings of above mentioned complaint case are liable to be quashed by this Court.
8. Per Contra, learned A.G.A has opposed present application. Learned A.G.A. contends that by means of order dated 09.12.2020, court below has simply issued notices to the accused i.e. applicants herein. Court below has not passed any order on the merits of complaint under Section 12 of the Act, 2005. It is next contended by learned A.G.A. that objections regarding jurisdiction of court below to proceed against applicants 2 to 9 agitated before this Court can be raised before court below itself. It is thus urged that present application is liable to be dismissed.
9. Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record, the Court finds that challenge to the order dated 09.12.2020 passed by court below is misconceived. The issue as to whether notices can be issued to the accused on a complaint under Section 12 of the Act, 2005 in ignorance of the report of District Protection Officer is no longer res-integra. The same stands settled by Gwalior Bench of Madhya Pradesh High Court in Ajay Kant Vs. Alka Sharma, 2008 Cr. L. J. 264. Following has been observed by the Court in paragraph 3-E:- The Court does not find any good reason to disagree with the reason assigned by His Lordship.
"3-(E). The proceeding has also been assailed on the ground that no report from the Protection Officer under Section 12 of the Act has been called.
Sub-section (1) of Section 12 of the Act goes as under:
12. (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;
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. 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."
10. With regard to second issue that proceedings against some of the accused can not be initiated under Section 12 of the Act, 2005, this Court is of the view that issue regarding jurisdiction of a court to proceed with the matter can be raised before court below itself. It is well settled that any Court before embarking upon the exercise of adjudicating any case, must also decide the question of valuation, limitation and jurisdiction.
11. In view of above, this Court does not find any good ground to entertain this application. As a result, present application fails and is liable to dismissed.
12. It is accordingly dismissed.
Order Date :- 12.8.2021/YK