Jharkhand High Court
Swarup Mandal vs State Of Jharkhand & Anr on 13 October, 2011
Equivalent citations: 2012 (2) AIR JHAR R 92, (2012) 1 DMC 72, (2012) 1 HINDULR 364, (2012) 2 MARRILJ 657, (2012) 1 JCR 153 (JHA), (2011) 108 ALLINDCAS 827 (JHA), 2011 (75) ACC (SOC) 70 (JHA)
Author: Prashant Kumar
Bench: Prashant Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No.130 of 2010
-----
Swarup Mandal ... .... .. . .Petitioner
. Versus
The State of Jharkhand & Anr ..., Opp.party
------
CORAM: HON'BLE MR. JUSTICE PRASHANT KUMAR
------
For the Petitioner : Mr.D.C.Mishra
For the State : A.P.P. and Mr.N.P.Choudhary
------
16/13.10.2011This revision application is directed against the order dated 05.01.2010 passed by Sessions Judge,Jamtara in Criminal Appeal No. 17 of 2009, whereby with modification in quantum of maintenance allowance he dismiss the appeal filed against the order dated 09.09.2009 passed by Chief Judicial Magistrate, Jamtara in Cr. Misc. (DV)case no. 03 of 2009.
2. It appears that O.P.No.2 has filed an application under section 12 of Protection of Women from Domestic Violence Act, 2005 ( hereinafter refer as "Act") for grant of maintenance as the petitioner, ( husband of O.P.No.2) had committed domestic violence upon her. It further appears that Chief Judicial Magistrate had issued notice to the petitioner and, thereafter, petitioner filed written statement. Then, both the parties adduced evidence in support of their case. It further appears that Chief Judicial Magistrate, Jamtara while passing order dated 09.09.2009 had come to the conclusion that petitioner committed domestic violence and, accordingly, directed the petitioner to pay maintenance allowance to O.P.No.2 to the tune of Rs. 4000/- per month. He further directed that petitioner should pay Rs. 2000/- towards maintenance of his son. The Chief Judicial Magistrate further directed the petitioner to pay Rs. 25,000/- towards medical expenses and Rs. 30,000/- towards damages caused to the "Stridhan" of O.P.No.2. It appears that aforesaid order of Chief Judicial Magistrate was challenged by the petitioner by filing Criminal Appeal No. 17 of 2009 in the court of Sessions Judge, Jamtara, which was dismissed vide order dated 05.01.2010 with modification in the maintenance allowance payable to O.P.No.2 and her son. Learned Sessions Judge directed that petitioner shall pay ₨. 2500/- per month to O.P.No.2 and Rs. 1500/- per month to her son as maintenance allowance.
3. While assailing aforesaid two orders, learned counsel for the petitioner submits that as per proviso to Section 12 of the Act , it is imperative upon the Magistrate to call for a report from the Protection Officer and consider the same before passing any final order on the application filed by aggrieved person. It is submitted that in the instant case, Magistrate has not called any report from the Protection Officer and passed order without considering it. Hence, order of Chief Judicial Magistrate cannot be sustained. It is further submitted that for the same relief, O.P.No.2 had filed a complaint case bearing P.C.R.Case no. 385/2006 under section 498A,379 and 323 I.P.C. It is submitted that in aforesaid case petitioner was discharged from the said complaint case because no witness was produced by the complainant in that case. Accordingly, it is submitted that the present application under section 12 of the said Act is not maintainable.
4. It is further submitted that O.P.No. 2 has not produced any medical bill showing that she incurred Rs. 25,000/- towards her medical expenses. Thus, the order of the learned courts below awarding medical expenses is liable to be set aside. It is also submitted that no report of Nephrologist has not been filed to show that O.P.No.2 was suffering from Kidney disease. Thus finding of the court below that she was suffering from kidney disease cannot be sustained.
5. On the other hand, learned counsel for the O.P.No.2 submits that as per proviso to section 12 of the Act a Magistrate is required to consider the report of Protection Officer, provide the same was received in his court. If the Protection Officer did not submit any report, then in that case it is not mandatory for the Magistrate to call for a report from the Protection Officer and consider the same.
6. It is further submitted that admittedly, in this case, report of Protection Officer has not been received in the court of Chief Judicial Magistrate, Jamtara. Under the said circumstance, non-consideration of said report before passing impugned order have no bearing on it.
7. It is further submitted that petitioner has been discharged in P.C.R case because no witness was produced in that case, whereas in the present case maintenance allowance granted in favour of opposite parties after considering evidence adduced by both the parties. Thus, discharge of petitioner in the aforesaid case has no bearing in the impugned orders. It is further submitted that O.P.No.2 has filed prescription issued by medical practitioner to show that she was suffering from Kidney disease as well as other ailments. Learned counsel further submitted that it has come in the evidence of all the witnesses examined by the O.P.No.2 that she made huge expenses towards her medical treatment and the said statement of witnesses had not been challenged by the petitioner. Accordingly, it is submitted that orders of the courts below awarding medical expenses are legal and require no interference.
8. Having heard submissions of the learned counsel, I have gone through the record of this case. Sub- Section (1) of Section 12 of the 'Act' reads 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."
9. From perusal of the Sub-section (1) of Section 12 of the Act, it is apparent that aggrieved person can also file an application seeking one or more relief enumerated in the Act. Proviso to Sub-section (1) of Section 12 made it imperative upon a Magistrate to take into consideration any domestic incident report of Protection Officer or service provider if the same is received by him.
10. From perusal of aforesaid provision of law, it is clear that it is not imperative for the Magistrate to call for a domestic incident report from Protection Officer or service provider. It only make it mandatory that if Protection Officer or service provider suo motu send a report to the Magistrate the same must be considered by him before passing any order.
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.
13. I further find that learned Sessions Judge and learned Chief Judicial Magistrate had concluded that O.P.No.2 was suffering from kidney disease on the basis of oral and documentary evidence produced by O.P.No.2.
Thus aforesaid finding which is purely a finding fact does not require any interference by this Court in exercise of its revisional jurisdiction, unless petitioner shows that the same are perverse. It is needless to say that petitioner failed to do so.
14. Under the said circumstance, I find no merit in this revision, which is, accordingly, dismissed.
( Prashant Kumar,J.) Raman/Cp3.