RULE Mrs.S.R.Shah, learned advocate for the respondent no.1 waives service of Rule for the respondent no.1 and Mr.K.P.Raval, learned Additional Public Prosecutor for the respondent no.2-State waives service of Rule for the respondent no.2-State.
Considering the facts and circumstances of the case, and as requested by learned counsel representing both the sides, the matter is taken up for final disposal today.
The instant application is filed by the applicants, who are original Opponent Nos. 2, 3 and 4 in Criminal Misc. Application No.531 of 2009 filed by the respondent no.1 herein against the applicants and others seeking various reliefs under the Protection of Women from Domestic Violence Act,2005 (hereinafter referred to as "D.V.Act").
Mr.S.P.Kotia, learned advocate for the applicants, at the outset, drew my attention to the order dated 18.11.2009, passed by the Trial Court, whereby the Trial Court directed the application to be registered and to issue notices to the opponents in that matter, to be made returnable on 21.11.2009 and to be served through Protection Officer and also called for the report of the Protection Officer.
4.1 Mr.S.P.Kotia, learned advocate for the applicants drew my attention to relevant provisions contained under Section 12 of the D.V.Act, which runs 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."
4.2 Mr.S.P.Kotia, learned advocate for the applicants, therefore, submitted that in the instant matter, before passing any order, the Trial Court should have called for the report of the Protection Officer and after taking into consideration said report, the Trial Court should have passed necessary order. It is, therefore, submitted that, in the instant matter thus, there is a non-compliance of mandatory provision contained under Section 12 of the D.V.Act.
4.3 However, Mr.S.P.Kotia, learned advocate for the applicant submitted that even on merits, the instant petition for quashing the said application under the D.V.Act, deserves to be granted. This Court considering the first submission advanced by Mr.Kotia, learned advocate for the applicant, did not think proper to enter into the merits of the matter.
Heard Mrs.S.R.Shah, learned advocate for the respondent no.1 and Mr.K.P.Raval, learned Additional Public Prosecutor for the respondent no.2-State.
As stated above, a mandatory requirement is laid-down in the proviso attached to sub-section (1) of Section 12 of the D.V.Act that before passing any order on such application presented, seeking any remedy under the D.V.Act before a Magistrate, a Magistrate shall take into consideration any domestic incident report received by the Magistrate from the Protection Officer. In the instant case, it transpires that the petition seeking various reliefs under the D.V.Act by the respondent no.1 herein came to be presented in the Court of learned Magistrate on 18.11.2009 and on the same day i.e. on 18.11.2009, the learned Magistrate passed the order, directing registration of the application as well as to issue notices to the opponents therein made returnable on 21.11.2009 and to be served through the Protection Officer and also simultaneously called for the report of the Protection Officer.
It transpires that above referred mandatory provision contained under sub-section (1) of Section 12 of the D.V.Act has not been duly complied with as before passing any order, the learned Magistrate should have taken into consideration the domestic incident report of the Protection Officer.
In above view of the matter, order dated 18.11.2009 deserves to be set-aside. Since the order dated 18.11.2009 deserves to be set-aside, this Court has not touched the merits or demerits of the matter pending before the Trial Court.
For the foregoing reasons, this petition is partly allowed and the order dated 18.11.2009, passed by the learned Judicial Magistrate First Class, Mahuva, in Criminal Case No.531 of 2009 is set-aside and the matter is remanded to the Court of learned Magistrate with specific direction to follow the provision contained under Section 12(1) of the Protection of Women from Domestic Violence Act,2005. It is hereby made clear that, if at all, such report is received by the learned Magistrate after 18.11.2009, then the learned Magistrate shall consider said report, and thereafter, shall pass appropriate order in accordance with law, but, if such report is not received so far, by the learned Magistrate, the learned Magistrate shall call for such report from the Protection Officer forthwith and thereafter, after perusing the said report, the learned Magistrate shall pass appropriate order in accordance with law.
Rule is partly made absolute accordingly. Registry to communicate this order to the concerned Trial Court forthwith.
(J.C.UPADHYAYA,J.) Girish Top