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Ashish Gupta vs State Of U.P. And Another on 12 January, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Case :- CRIMINAL REVISION No. – 15 of 2014

Revisionist :- Ashish Gupta

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- Shyam Shankar Mishra,Ashok Nath Tripathi,Manoj Kumar Tiwari,Pradip Kumar

Counsel for Opposite Party :- Govt. Advocate,Gaurav Kakkar,Pradip Kumar

Hon’ble Abhai Kumar,J.

This revision has been preferred against the judgement and order dated 4.10.2013 passed by Arun Chandra Srivastava, Additional Sessions Judge, Court No. 7, Ghaziabad whereby Appeal No. 54 of 2011 (Ashish Gupta Vs. Smt. Subeena Gupta and another) was dismissed wherein order dated 14.6.2011 passed by the Additional Chief Judicial Magistrate, Court No. 3 Ghaziabad in Case No. 4695 of 2009 (Smt. Subeena Gupta Vs. Ashish Gupta) challenging the application moved under section 12 of the Protection of Women from Domestic Violence Act, 2005 ( in short the ‘Act’) and the order under section 23 of the Act was passed for granting interim maintenance of Rs. 15,000/- to opposite party no. 2.

The facts of the case in brief are as under :

An application under section 12 of the Act against the revisionist by opposite party no.2 was filed. Application under section 23 of the Act was also moved for interim maintenance. After hearing the parties, the trial court allowed the application and Rs. 15,000/- was allowed as maintenance for opposite party no.2 as well as her children till the disposal of the matter finally. Other directions were also issued by the court that she will not be expelled from the house in which she is living with her children and the payment of electricity bills etc. will also be made by the revisionist and no domestic violence will be done.

Before the trial court various points are being raised out which one point was regarding none summoning of the report from the Probation Officer and passing of the order without report.

The only contention that is being raised by the counsel is that the trial court was not entitled to pass any order without report from the Probation Officer. Although, various points are being taken in the revision, but the same are not being argued and accordingly it is observed that they are not being pressed.

The only point that is to be decided in the present case is whether the trial court caused any illegality in passing the interim order without summoning the Domestic Incident Report from the Protection Officer.

Section 12(1) of the Act runs as follows;

“12. An 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 learned counsel then referred section 9 of the Act regarding the duties and functions of the Protection Officer and said that incorporation of the section clearly indicates that the report of the Protection Officer should be considered by the Magistrate. This section cannot be a redundant section. Further attention of the revisionist counsel is drawn towards form no. 2 (Rules 6 (1) ), which is proforma on which application under section 12 of the Act is being moved. It is also the submission of the learned counsel that the appellate court did accept that the report of the Protection Officer is required, but observed that it is not required at the time of the disposal of the interim application rather it is only required for the disposal of the application finally.

The learned counsel also fortified his argument by placing the law propounded by the Delhi High Court in the Case of Dhupender Singh Mehra and another Versus State (NCT of Delhi) and another reported on (2011)1 Crimes 520.

The law propounded by the Delhi High Court is not specifically applicable in the present case, more so, when the order is passed under section 23 of the Act. The Delhi High Court while dealing with the matter observed that before issuing any notice to any person it is to be seen by the court whether requirement of section 2 (q) is there. The petition before the Delhi High Court was filed by the father-in-law, brother-in-law (elder brother of the husband) and in the circumstance, Delhi High Court observed that before issuing notice court must address the point whether persons who are being party in the case are having domestic relationship with the aggrieved person or not.

In the present case, petition is being filed against the husband only. It cannot be said that he is not in domestic relationship with opposite party no.2 and it is also not being denied by the revisionist. With due respect to the Hon’ble Judge of the Delhi High Court, this court is constrained to observe that there is no mandatory provisions for obtaining the Domestic Incident Report while passing the order upon the application under section 12 of the Act when it is being filed as complaint by the aggrieved person.

The High Court of Jharkhand in Criminal Revision No. 130 of 2010- Swarup Mandal Versus The State of Jhankhand and another decided on 13.10.2011 also observed that there is no such requirement that a magistrate must obtain Domestic Violence Report before passing any order under section 12 of the Act. The Hon’ble Lordship observed as follows :

“11. Admittedly, in this case, no domestic incident report received in the court of the Chief Judicial Magistrate, Jamtara either from Protection Officer or service provider Under the said circumstance, there was no report before the Chief Judicial Magistrate which he could consider before passing impugned order. Accordingly, I find no illegality in this respect.

12. Now, coming to second contention , it is worth mentioning that in the complaint case, petitioner was discharged, because no evidence was produced in that case. Thus, discharge of petitioner in the aforesaid complaint case have no bearing on the result of this case. Hence, I find no merit in the second contention of the learned counsel for the petitioner.”

Similar view was also taken by the Madhya Pradesh High Court in the case of Ajay Kant and others Vs. Smt. Alka Sharma reported in 2008 CriL.J 264, 1 (2008) DMC 1, 2007(4) MPHT 62 and it is observed by the Hon’ble judge that Domestic Violence Report can only be required to be considered if it is upon record. If there is no Domestic Violence Report then no question arose for considering that report.

The Hon’ble judge observed as follows in reference to section 12 of the Act.

“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.”

In view of the above, this court is of the opinion that the stands taken by the Hon’ble Judge of the Delhi High Court cannot be basis for passing any order in the present matter.

In the present case, impugned order was passed after hearing the revisionist and taking into consideration all the facts and objections raised by the revisionist. For passing any order under section 23 of the Act all the facts are being considered by the court concerned and the court concerned has specifically provided maintenance regarding education, nourishment and transportation etc.

It is also worthwhile to mention that the order also containing a clause that in case opposite party no. 2 is also getting maintenance amount in any other proceedings ,then the same will be adjusted towards the payment of the amount directed to be paid in the present case. Although under the Act the court is entitled to pass order of maintenance and other things in addition to any other order that is passed in separate proceedings. Any amount paid by the revisionist in this proceedings is certainly liable to be adjusted under section 125 Cr.P.C. which is also pending revision and in the circumstance, present order is not doing prejudice to the revisionist in any manner.

This court does not find any illegality or perversity or in correctness in the order passed by the trial court as well as by the appellate court and does not find any reason to interfere in the impugned order and accordingly, the revision is liable to be dismissed.

Accordingly, revision is dismissed.

Dated 12.1.2018

NA

 

 

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