ANDM.P.NOS.1 AND 2 OF 2007 v. Karthiyayini

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.11.2007CORAMTHE HONOURABLE MR. JUSTICE K. MOHAN RAMCRIMINAL ORIGINAL PETITION NO.32475 OF 2007ANDM.P.NOS.1 AND 2 OF 2007Amar Kumar Mahadevan... Petitioner(Accused)Vs.Karthiyayini... Respondent(Complainant)Criminal Original Petition filed under Section 482 of theCriminal Procedure Code praying to call for the records inS.T.C.No.1607 of 2007 on the file of the learned JudicialMagistrate No.VI, Coimbatore and quash the proceedings.For Petitioner : Mr. C.S. Dhanasekaran *******O R D E RThe petitioner herein is the respondent in STC.No.1607 of2007 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 TheProtection of Women from Domestic Violence Act, 2005 (hereinafterreferred to as the "Act") making certain allegations against thepetitioner herein. The said application seems to have been filed on25.7.2007 and on the same date, the sworn statement has beenrecorded. The learned Magistrate being satisfied that a prima faciecase has been made out, has taken the application on file underSection 12 of the Act and posted the application to 30.7.2007,directed the issue of summons to the accused/petitioner herein andalso private notice to the petitioner herein. The petitioner hasfiled the above criminal original petition under Section 482 ofCr.P.C. seeking to quash the proceedings in STC.No.1607 of 2007. https://hcservices.ecourts.gov.in/hcservices/

2. The contention of the petitioner is that the swornstatement of the respondent herein was recorded only on 25.7.2007and the hearing was adjourned to 30.7.2007 in gross violation ofthe mandatory provisions of Section 12(4) of the Act. It is furthercontended that the service of notice of the date of hearing fixedunder Section 12 of the Act is not in accordance with the procedureprescribed under Section 13(1) of the Act namely, the notice wasnot served by the Protection Officer and private notice has beenpermitted. Further, a declaration of service of notice made by theProtection Officer has not so far been filed as per the provisionscontained under Section 13(2) of the Act.3. The learned counsel for the petitioner furthercontended that the learned Magistrate erred in taking cognizance ofthe application filed by the respondent herein without calling forthe report from the Protection Officer.4. Heard Mr. C.S. Dhanasekaran, learned counsel for thepetitioner.5. The learned counsel for the petitioner whilereiterating the above said contentions put forth in the petitionsubmitted that the proceedings pending on the file of the learnedMagistrate are liable to be quashed for not following the mandatoryprovisions contained in the Act. 6. Before considering the above said contentions putforth by the petitioner, it is necessary to refer the relevantprovisions of the Act. Sections 12 and 13 of the Act read asfollows:-"12. Application to Magistrate- (1) An aggrievedperson or a Protection Officer or any other personon behalf of the aggrieved person may present anapplication to the Magistrate seeking one or morereliefs under this Act:Provided that before passing any order on suchapplication, the Magistrate shall take intoconsideration any domestic incident report receivedby him from the Protection Officer or the serviceprovider.(2) The relief sought for under sub-section (1) mayinclude a relief for issuance of an order forpayment of compensation or damages withoutprejudice to the right of such person to institutea suit for compensation or damages for the injuriescaused by the acts of domestic violence committedby the respondent: https://hcservices.ecourts.gov.in/hcservices/ Provided that where a decree for any amount ascompensation or damages has been passed by anyCourt in favour of the aggrieved person, theamount, if any, paid or payable in pursuance of theorder made by the Magistrate under this Act shallbe set off against the amount payable under suchdecree and the decree shall, notwithstandinganything contained in the Code of Civil Procedure,1908 (5 of 1908), or any other law for the timebeing in force, be executable for the balanceamount if any, left after such set off.(3) Every application under sub-section (1)shall be in such form and contain such particularsas may be prescribed or as nearly as possiblethereto.(4) The Magistrate shall fix the first date ofhearing, which shall not ordinarily be beyond threedays from the date of receipt of the application bythe Court.(5) The Magistrate shall endeavour to disposeof every application made under sub-section (1)within a period of sixty days from the date of itsfirst hearing.13. Service of notice- (1) A notice of the date ofhearing fixed under section 12 shall be given bythe Magistrate to the Protection Officer, who shallget it served by such means as may be prescribed onthe respondent, and on any other person, asdirected by the Magistrate within a maximum periodof two days or such further reasonable time as maybe allowed by the Magistrate from the date of itsreceipt.(2) A declaration of service of notice made by theProtection Officer in such form as may beprescribed shall be the proof that such notice wasserved upon the respondent and on any other personas directed by the Magistrate unless the contraryis proved."7. Before making an endeavour to ascertain the purport andscope of the provisions contained in Sections 12 and 13 of the Act,it will be useful to refer to the objects in enacting the abovesaid Act. The statement of objects and reasons reads as follows:-"Statement of Objects and Reasons.- Domesticviolence is undoubtedly a human rights issue andserious deterrent to development. The Vienna Accordof 1994 and the Beijing Declaration and the https://hcservices.ecourts.gov.in/hcservices/ Platform for Action (1995) have acknowledged this.The United Nations Committee on Convention onElimination of All forms of Discrimination AgainstWomen (CEDAW) in its General Recommendation No.XII(1989) has recommended that State parties shouldact to protect women against violence of any kindespecially that occurring within the family.2. The phenomenon of domestic violence iswidely prevalent but has remained largely invisiblein the public domain. Presently, where a women issubjected to cruelly by her husband or hisrelatives, it is an offence under section 498-A ofthe Indian Penal Code. The civil law does nothowever address this phenomenon in its entirety. 3. It is, therefore, proposed to enact a lawkeeping in view the rights guaranteed underarticles 14, 15 and 21 of the Constitution toprovide for a remedy under the civil law which isintended to protect the woman from being victims ofdomestic violence and to prevent the occurrence ofdomestic violence in the society."8. In construing the provisions of the Act, the Courthas to bear in mind that it is a beneficent piece of socialwelfare legislation aimed at promoting and securing the well-beingof the aggrieved persons and the Court will not adopt a narrowinterpretation which will have the effect of defeating the veryobject and purpose of the Act. It must be interpreted in thespirit in which the same have been enacted accompanied by ananxiety to ensure that the protection is not nullified by thebackward looking interpretation which serves to defeat theprovision rather than to fulfil its life-aim. 9. Keeping the above said principles in mind, if theprovisions contained in Sections 12 and 13 of the Act areconsidered with reference to the contentions put forth by thelearned counsel for the petitioner, this Court without anyhesitation comes to a conclusion that the said contentions putforth by the counsel for the petitioner have to be rejected at athreshold. A reading of Section 12(4) of the Act shows that theMagistrate shall fix the first date of hearing, which shall notordinarily be beyond three days from the date of receipt of theapplication by the Court. Section 12(5) of the Act stipulates thatthe Magistrate shall endeavour to dispose of every applicationmade under sub-section (1) within a period of sixty days from thedate of its first hearing. Since the Act provides for the disposalof the application filed by the aggrieved person in a time boundmanner, to achieve that object, certain enabling provisions have https://hcservices.ecourts.gov.in/hcservices/ been incorporated under Section 13 of the Act. Section 13 of theAct provides that a notice of the date of hearing fixed underSection 12 of the Act shall be given by the Magistrate to theProtection Officer, who shall get it served by such means as maybe prescribed on the respondent, and on any other person, asdirected by the Magistrate within a maximum period of two days orsuch further reasonable time as may be allowed by the Magistratefrom the date of its receipt. A declaration of service of noticemade by the Protection Officer in the form set out by the CentralGovernment by rules shall be a proof of service of notice. Sinceas per Section 12(5) of the Act, it is the bounden duty of theMagistrate to make an endeavour to dispose of the applicationwithin a period of sixty days from the date of its first hearing,unless the service of notice is completed at the earliest, it maynot be possible to dispose of the application within the abovesaid stipulated time. Therefore, Section 13 of the Act providesfor service of notice on the respondent through the ProtectionOfficer and such notice shall be served within a maximum period oftwo days or such further reasonable time as may be allowed by theMagistrate. In this context, it will be useful to refer Section 28of the Act, which reads as follows:-" 28. Procedure- (1) Save as otherwise provided inthis Act, all proceedings under Sections 12, 18,19, 20, 21, 22 and 23 and offences under Section31 shall be governed by the provisions of the Codeof Criminal Procedure, 1973 (2 of 1974).(2) Nothing in sub-section (1) shall preventthe Court from laying down its own procedure fordisposal of an application under Section 12 orunder 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 procedurefor disposal of an application. Thus, it is clear that apart fromfollowing the procedure provided under Sections 12 and 13 of theAct, it is open to the Magistrate to follow its own procedure fordisposal of applications filed under this Act.11. It is seen from the diary extract that the complainant waspresent on 25.7.2007 and the sworn statement of the respondent hadbeen recorded on the same day and after perusing the records and onbeing satisfied that a prima facie case has been made, the learnedMagistrate has taken the application on file under Section 12 ofthe Act and posted the application to 30.7.2007. The learnedMagistrate has noted that 28th and 29th of July, 2007 happened to beholidays and therefore, has directed to issue summons to theaccused (respondent) on payment of process fee and also privatenotice to the accused (respondent). Thus, it is clear that the https://hcservices.ecourts.gov.in/hcservices/ learned Magistrate was conscious of the time limit prescribed underSection 12(4) of the Act. On 30.7.2007, the complainant/respondentherein was present but the accused/petitioner was not present andtherefore, summons was ordered on 1.8.2007. On 1.8.2007, thecomplainant/respondent herein was present but theaccused/petitioner herein was not present and it had been broughtto the notice of the Court that the petitioner is working atVisakapattinam and at the request of the counsel for the respondentherein, notice has been ordered to be issued to the ProtectionOfficer and on the next date of hearing was fixed for 10.8.2007. On10.8.2007, as the accused/petitioner herein was not present, onceagain, summons have been directed to be issued to the petitionerand a private notice has also been ordered returnable by 17.8.2007.On 17.8.2007, the respondent herein was present but the petitionerherein was absent. The postal cover had been returned as"unclaimed". Hence, the non bailable warrant was issued against thepetitioner herein returnable by 31.8.2007. On 18.8.2007, i.e., thevery next day, the petitioner had surrendered before the Court andon a petition filed by him, non bailable warrant had been cancelledand the copies have been given to him and had been questioned. 12. From the above said diary extract, it can be seenthat the learned Magistrate has taken every effort to serve thenotice on the petitioner and in fact on 1.8.2007, the learnedMagistrate has directed the issue of notice to the ProtectionOfficer. It further reveals that on the first date of hearingnamely, 25.7.2007 itself private notice has been directed to beissued to the petitioner herein. Such order directing the issue ofprivate notice to the petitioner herein cannot be said to beagainst the provisions contained in the Act but it can only betaken to be in consonance with Section 28 of the Act, since Section28 of the Act enables the Magistrate to lay down his own procedurefor disposal of the application. By the issue of private notice tothe petitioner, it is not understandable as to how the petitioneris prejudiced. If the learned Magistrate had not directed theservice of the notice through the Protection Officer, it is therespondent 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 theProtection Officer shall be the proof that such notice was servedupon the respondent as per Section 13(2) of the Act. The absence ofsuch declaration from the Protection Officer has not in any wayaffected the proceedings pending before the learned Magistrate orit has in any way prejudiced the interest of the petitioner herein.He had admittedly appeared before the learned Magistrate on18.8.2007. Therefore, the necessity to file a declaration ofservice of notice by the Protection Officer has not arisen. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the contentions of the learned counsel for thepetitioner is liable to be rejected and accordingly rejected.14. The proviso to Section 12 of the Act provides thatbefore passing any order on the application filed under Section 12(1) of the Act, the Magistrate shall take into consideration anydomestic incident report received by him from the ProtectionOfficer. In this case, admittedly, the Protection order has not sofar been passed and it is yet to be passed. The contention of thelearned counsel for the petitioner is that the application itselfshould not have been taken cognizance in the absence of thedomestic incident report from the Protection Officer. A reading ofSection 12 of the Act does not warrant such an interpretation.Nowhere, it is provided in the Act that even for taking cognizanceof the application filed by the aggrieved person, the receipt ofthe domestic incident report from the Protection Officer is acondition precedent. Therefore, the contention of the learnedcounsel for the petitioner is untenable and does not meritacceptance.15. As stated above, this Act being a beneficent piece oflegislation enacted for providing minimum relief to an aggrievedperson affected by domestic violence, even if there is any minorprocedural deviation, such minor procedural deviation beingtechnical in nature, need not be taken serious note off and on thatground, the proceedings pending under the Act cannot be quashed.17. In the considered view of this Court, the abovepetition is vexatious in nature and it amounts to clear abuse ofprocess of the Court and hence, the same is liable to be dismissedand accordingly dismissed. Consequently, connected miscellaneouspetitions are also dismissed.KbSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ TO1. THE JUDICIAL MAGISTRATE NO. VI, COIMBATORE.2. DO THRO' THE CHIEF JUDICIAL MAGISTRATE, COIMBATORE.+ 1 CC TO MR. C. S. DHANASEKARAN, ADVOCATE SR NO. 70575 CRL.O.P.NO.32475OF 2007JRG(CO)SR/7.12.2007