Karnataka High Court
Hanee S/O Sunil Vinchu Ors vs The State Of Karnataka Anr on 17 July, 2012
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
DATED THIS THE 17TH DAY OF JULY 2012
CRIMINAL PETITION NO.15536/2012
BETWEEN:
1. HANEE S/O SUNIL VINCHU,
AGE: 26 YEARS, OCC: LECTURER,
2. SUNIL S/O SHANTARAM VINCHU,
AGE: 55 YEARS, OCC: CHARTERED ACCOUNTANT,
3. SUPRIYA W/O SUNIL,
AGE: 55 YEARS, OCC: HOUSEHOLD,
4. ALKA W/O SHANTARAM,
AGE: 76 YEARS, OCC: NIL,
ALL R/O KHED,
DIST: RATNAGIRI, MAHARASHTRA STATE.
...Petitioners
(By Sri. ISHWARAJ.S.CHOWDAPUR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ADDL.STATE
PUBLIC PROSECUTOR, CIRCUIT BENCH
GULBARGA.
2
2. PREETI W/O HANEE VINCHU,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O C/O SUBHASHCHANDRA MAHANTGOL,
RAJAPUR, TQ & DIST: GULBARGA.
...Respondents
(By SMT. ANURADHA DESAI, ADDL.SPP FOR R-1
SRI B.D.HANGARKI, ADVOCATE FOR R-2)
***
This Criminal Petition is filed under Section 482 of
Cr.P.C. by the Advocate for the petitioners praying that this
Hon'ble Court may be pleased to, quash the proceedings
initiated against the petitioners No.1 to 4 in Criminal Misc.No
14/2012 which is pending before the III Addl. JMFC.,
Gulbarga.
This Petition coming on for Admission this day, the
court made the following:-
ORDER
The respondents in Criminal Misc. No. 14/2012 on the file of the Judicial Magistrate First Class at Gulbarga, have preferred this petition with a prayer to set aside the proceedings initiated against the petitioner Nos. 1 to 4.
2. Learned Counsel for the petitioners submitted to allow this petition by setting aside the proceedings on the 3 technical ground, viz under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "DV Act" for short). He shall take into consideration any domestic incident report received from the Protection Officer or the Services provider before issuing notice to the respondents. This mandatory proviso of 1(2) of Section 12 of the DV Act has not been complied with even before issuing notice. Hence, instituting of this case is bad in law and is in contravention of Section 12 of DV Act. Learned Counsel also referred Rules 5 and 6 of the Domestic Violence Rules 2006, which enables the Protection Officer to report to the Magistrate in Form No.1. He further submitted that the application made under Section 12 of the DV Act is not supported by an affidavit in Form No.3, and hence the proceedings initiated against the petitioner is bad in law. Hence, he submits that the impugned order is liable to set aside.
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3. The learned counsel for the respondent No.2, on the other hand, submitted to dismiss this petition. Provision of 1 (2) of Section 12 of the DV Act could be operated only in a case where Magistrate quashes the order under Section (2) of Section 12 of the DV Act. The Protection Officer or service provider's report is required to be considered by the Magistrate while passing an order or for issuing an order for compensation for damages, if any, or an application filed by the petitioner. Hence, there is no inconsistency or there is contravention of the provision of 1 (2) of 12 of the DV Act. An Affidavit under Form no. 3 and Rule 6 of the Domestic Violence Rules, is required to made only where the application for compensation for damages is made. In the instant case, it only at the stage of issuing notice. Accordingly, notice has been issued and the same has been served on the respondents. This further clarifies in Rule 7, of the DV Rules which enables party to make an affidavit or application for obtaining ex-party orders from the Magistrate. 5
4. The learned counsel for the first respondent submitted that the Magistrate has not committed any violation, much less the violation proviso 1 (2) of Section 12 of the DV Act. He also submitted that the provision comes into picture whether application is made under 7 Rule 6 for the purpose of invoking proviso of 1 (2) of Section 12 of the DV Act. In the instant case, as for the present, the parties have not made any application either under Rule 7 or under Rule 6 of the DV Rules and hence, invoking the proviso of 1 (2) of Section 12 of the DV Act does not arise.
5. I have heard both the sides.
6. The prayer made in the petition is for setting aside the order made in case in Criminal Misc. No.14/2012 is to be considered by examining whether the Magistrate has committed an error of proviso of 1 (2) of Section 12 of the DV Act. The submissions are that before passing of any order by the Magistrate, he shall be obtain report from the Protection Officer or service provider is mis-understood by the petitioner. 6 A mandatory provision of obtaining report either from the Protection Officer or service provider would arise only when an application is made in Form No.3 under Rule 7, seeking compensation of damage. Then the Magistrate shall obtain particulars either from the Protection Officer or from the Service provider. Proviso of 1 (2) of Section 12 of the DV Act shall not be misread in order to disqualify the registering of the case under Section 12 of the DV Act. Hence, the prayer made by the petitioner does not holds water. Under the circumstance, I hold that the Magistrate has not committed any error in obtaining report from the Protection Officer or Service Provider. Even obtaining a report from the service provider or protection officer is not mandatory. This is clear from the observation made in the case of Milan Kumar Singh and Another V/s State of U.P and Another reported in 2007 Crl.L.J. 4742.
It all depends upon whether the petitioners have made the prima-facie case, and whether the Magistrate have taken 7 cognizance of the same. Under these circumstances the prayer made by the petitioner in the petition is to be dismissed. Accordingly it is dismissed.
Sd/-
JUDGE MSR*