IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2007
CORAM
THE HONOURABLE MR. JUSTICE K. MOHAN RAM
CRIMINAL ORIGINAL PETITION No.32475 of 2007
AND
M.P. Nos.1 and 2 of 2007
Amar Kumar Mahadevan ... Petitioner
Vs.
Karthiyayini ... Respondent
Criminal Original Petition filed under Section 482 of
the Criminal Procedure Code praying to call for the records
in S.T.C.No.1607 of 2007 on the file of the learned Judicial
Magistrate No.VI, Coimbatore and quash the proceedings.
For Petitioner : Mr. C.S. Dhanasekaran
O R D E R
The petitioner herein is the respondent in
STC.No.1607 of 2007 on the file of the learned Judicial
Magistrate No.VI, Coimbatore. The respondent herein is the
wife of the petitioner. The respondent filed an application
under Section 12 of the The Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as the
“Act”) making certain allegations against the petitioner
herein. The said application seems to have been filed on
25.7.2007 and on the same date, the sworn statement has been
recorded. The learned Magistrate being satisfied that a
prima facie case has been made out, has taken the
application on file under Section 12 of the Act and posted
the application to 30.7.2007, directed the issue of summons
to the accused/petitioner herein and also private notice to
the petitioner herein. The petitioner has filed the above
criminal original petition under Section 482 of Cr.P.C.
seeking to quash the proceedings in STC.No.1607 of 2007.
2. The contention of the petitioner is that the
sworn statement of the respondent herein was recorded only
on 25.7.2007 and the hearing was adjourned to 30.7.2007 in
gross violation of the mandatory provisions of Section 12(4)
of the Act. It is further contended that the service of
notice of the date of hearing fixed under Section 12 of the
Act is not in accordance with the procedure prescribed under
Section 13(1) of the Act namely, the notice was not served
by the Protection Officer and private notice has been
permitted. Further, a declaration of service of notice made
by the Protection Officer has not so far been filed as per
the provisions contained under Section 13(2) of the Act.
3. The learned counsel for the petitioner further
contended that the learned Magistrate erred in taking
cognizance of the application filed by the respondent herein
without calling for the report from the Protection Officer.
4. Heard Mr. C.S. Dhanasekaran, learned counsel
for the petitioner.
5. The learned counsel for the petitioner while
reiterating the above said contentions put forth in the
petition submitted that the proceedings pending on the file
of the learned Magistrate are liable to be quashed for not
following the mandatory provisions contained in the Act.
6. Before considering the above said contentions
put forth by the petitioner, it is necessary to refer the
relevant provisions of the Act. Sections 12 and 13 of the
Act read as follows:
“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 such 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.
13. Service of notice- (1) A notice of the
date of hearing fixed under section 12 shall
be given by the Magistrate to the Protection
Officer, who shall get it served by such
means as may be prescribed on the
respondent, and on any other person, as
directed by the Magistrate within a maximum
period of two days or such further
reasonable time as may be allowed by the
Magistrate from the date of its receipt.
(2) A declaration of service of notice made
by the Protection Officer in such form as
may be prescribed shall be the proof that
such notice was served upon the respondent
and on any other person as directed by the
Magistrate unless the contrary is proved.”
7. Before making an endeavour to ascertain the
purport and scope of the provisions contained in Sections
12 and 13 of the Act, it will be useful to refer to the
objects in enacting the above said Act. The statement of
objects and reasons reads as follows:
“Statement of Objects and Reasons.- Domestic
violence is undoubtedly a human rights issue
and serious deterrent to development. The
Vienna Accord of 1994 and the Beijing
Declaration and the Platform for Action
(1995) have acknowledged this. The United
Nations Committee on Convention on
Elimination of All forms of Discrimination
Against Women (CEDAW) in its General
Recommendation No.XII (1989) has recommended
that State parties should act to protect
women against violence of any kind
especially that occurring within the family.
2. The phenomenon of domestic violence
is widely prevalent but has remained largely
invisible in the public domain. Presently,
where a women is subjected to cruelly by her
husband or his relatives, it is an offence
under section 498-A of the Indian Penal
Code. The civil law does not however address
this phenomenon in its entirety.
3. It is, therefore, proposed to enact
a law keeping in view the rights guaranteed
under articles 14, 15 and 21 of the
Constitution to provide for a remedy under
the civil law which is intended to protect
the woman from being victims of domestic
violence and to prevent the occurrence of
domestic violence in the society.”
8. In construing the provisions of the Act, the
Court has to bear in mind that it is a beneficent piece of
social welfare legislation aimed at promoting and securing
the well-being of the aggrieved persons and the Court will
not adopt a narrow interpretation which will have the
effect of defeating the very object and purpose of the Act.
It must be interpreted in the spirit in which the same have
been enacted accompanied by an anxiety to ensure that the
protection is not nullified by the backward looking
interpretation which serves to defeat the provision rather
than to fulfil its life-aim.
9. Keeping the above said principles in mind, if
the provisions contained in Sections 12 and 13 of the Act
are considered with reference to the contentions put forth
by the learned counsel for the petitioner, this Court
without any hesitation comes to a conclusion that the said
contentions put forth by the counsel for the petitioner
have to be rejected at a threshold. A reading of Section
12(4) of the Act shows that 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. Section 12(5) of the Act stipulates that 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. Since the Act provides
for the disposal of the application filed by the aggrieved
person in a time bound manner, to achieve that object,
certain enabling provisions have been incorporated under
Section 13 of the Act. Section 13 of the Act provides that
a notice of the date of hearing fixed under Section 12 of
the Act shall be given by the Magistrate to the Protection
Officer, who shall get it served by such means as may be
prescribed on the respondent, and on any other person, as
directed by the Magistrate within a maximum period of two
days or such further reasonable time as may be allowed by
the Magistrate from the date of its receipt. A declaration
of service of notice made by the Protection Officer in the
form set out by the Central Government by rules shall be a
proof of service of notice. Since as per Section 12(5) of
the Act, it is the bounden duty of the Magistrate to make
an endeavour to dispose of the application within a period
of sixty days from the date of its first hearing, unless
the service of notice is completed at the earliest, it may
not be possible to dispose of the application within the
above said stipulated time. Therefore, Section 13 of the
Act provides for service of notice on the respondent
through the Protection Officer and such notice shall be
served within a maximum period of two days or such further
reasonable time as may be allowed by the Magistrate. In
this context, it will be useful to refer Section 28 of the
Act, which reads as follows:
” 28. Procedure- (1) Save as otherwise
provided in this Act, all proceedings under
Sections 12, 18, 19, 20, 21, 22 and 23 and
offences under Section 31 shall be governed
by the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall
prevent the Court from laying down its own
procedure for disposal of an application
under Section 12 or under subs-section (2)
of Section 23.
10. A reading of the above said provision shows
that sub-section 2 envisages that the Court may lay down
its own procedure for disposal of an application. Thus, it
is clear that apart from following the procedure provided
under Sections 12 and 13 of the Act, it is open to the
Magistrate to follow its own procedure for disposal of
applications filed under this Act.
11. It is seen from the diary extract that the
complainant was present on 25.7.2007 and the sworn
statement of the respondent had been recorded on the same
day and after perusing the records and on being satisfied
that a prima facie case has been made, the learned
Magistrate has taken the application on file under Section
12 of the Act and posted the application to 30.7.2007. The
learned Magistrate has noted that 28th and 29th of July,
2007 happened to be holidays and therefore, has directed to
issue summons to the accused (respondent) on payment of
process fee and also private notice to the accused
(respondent). Thus, it is clear that the learned Magistrate
was conscious of the time limit prescribed under Section
12(4) of the Act. On 30.7.2007, the complainant/respondent
herein was present but the accused/petitioner was not
present and therefore, summons was ordered on 1.8.2007. On
1.8.2007, the complainant/respondent herein was present but
the accused/petitioner herein was not present and it had
been brought to the notice of the Court that the petitioner
is working at Visakapattinam and at the request of the
counsel for the respondent herein, notice has been ordered
to be issued to the Protection Officer and on the next date
of hearing was fixed for 10.8.2007. On 10.8.2007, as the
accused/petitioner herein was not present, once again,
summons have been directed to be issued to the petitioner
and a private notice has also been ordered returnable by
17.8.2007. On 17.8.2007, the respondent herein was present
but the petitioner herein was absent. The postal cover had
been returned as “unclaimed”. Hence, the non bailable
warrant was issued against the petitioner herein returnable
by 31.8.2007. On 18.8.2007, i.e., the very next day, the
petitioner had surrendered before the Court and on a
petition filed by him, non bailable warrant had been
cancelled and the copies have been given to him and had
been questioned.
12. From the above said diary extract, it can be
seen that the learned Magistrate has taken every effort to
serve the notice on the petitioner and in fact on 1.8.2007,
the learned Magistrate has directed the issue of notice to
the Protection Officer. It further reveals that on the
first date of hearing namely, 25.7.2007 itself private
notice has been directed to be issued to the petitioner
herein. Such order directing the issue of private notice to
the petitioner herein cannot be said to be against the
provisions contained in the Act but it can only be taken to
be in consonance with Section 28 of the Act, since Section
28 of the Act enables the Magistrate to lay down his own
procedure for disposal of the application. By the issue of
private notice to the petitioner, it is not understandable
as to how the petitioner is prejudiced. If the learned
Magistrate had not directed the service of the notice
through the Protection Officer, it is the respondent herein
who should really be the aggrieved person by non-observance
of the provisions contained in Section 12 and Section 13
(1) of the Act.
13. The declaration of service of notice by the
Protection Officer shall be the proof that such notice was
served upon the respondent as per Section 13(2) of the Act.
The absence of such declaration from the Protection Officer
has not in any way affected the proceedings pending before
the learned Magistrate or it has in any way prejudiced the
interest of the petitioner herein. He had admittedly
appeared before the learned Magistrate on 18.8.2007.
Therefore, the necessity to file a declaration of service
of notice by the Protection Officer has not arisen.
Therefore, the contentions of the learned counsel for the
petitioner is liable to be rejected and accordingly
rejected.
14. The proviso to Section 12 of the Act provides
that before passing any order on the application filed
under Section 12(1) of the Act, the Magistrate shall take
into consideration any domestic incident report received by
him from the Protection Officer. In this case, admittedly,
the Protection order has not so far been passed and it is
yet to be passed. The contention of the learned counsel for
the petitioner is that the application itself should not
have been taken cognizance in the absence of the domestic
incident report from the Protection Officer. A reading of
Section 12 of the Act does not warrant such an
interpretation. Nowhere, it is provided in the Act that
even for taking cognizance of the application filed by the
aggrieved person, the receipt of the domestic incident
report from the Protection Officer is a condition
precedent. Therefore, the contention of the learned
counsel for the petitioner is untenable and does not merit
acceptance.
15. As stated above, this Act being a beneficent
piece of legislation enacted for providing minimum relief
to an aggrieved person affected by domestic violence, even
if there is any minor procedural deviation, such minor
procedural deviation being technical in nature, need not be
taken serious note off and on that ground, the proceedings
pending under the Act cannot be quashed.
17. In the considered view of this Court, the
above petition is vexatious in nature and it amounts to
clear abuse of process of the Court and hence, the same is
liable to be dismissed and accordingly dismissed.
Consequently, connected miscellaneous petitions are also
dismissed.
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