Nayanakumar v. The State Of Karnataka, And Another

Jagannathan, J.

The petitioner seeks quashing of the order dated 24.4.2009 in Crl.RP 156/2008 passed by the Learned Addl. Sessions Judge, Bijapur and also the proceedings in Crl.Misc 77/08 on the file of the Learned JMFC, Bijapur.

2. The case of the petitioner is that the 2 respondent claiming to be the wife of the petitioner approached the District Legal Services Authority seeking the assistance of the said authority to bring together the 2 respondent and the 1st petitioner as they are the wife and husband and following the husband having gone out of the company of the 2 respondent, she made such a request.

3. Pursuant to the said request made by the 2 respondent, District Legal Services Authority took up the matter before Lok Adalath and both the petitioner and 2 respondent were present and after perusing the documents produced by the 2 respondent and also on being not successful despite a long deliberation, in bringing the parties to arrive at a compromise, the District Legal Services Authority thought it fit to refer the matter back to the jurisdictional Magistrate for doing the needful in accordance with the Protection of Women from Domestic Violence Act, 2005 (for short Act 2005). On receipt of the said order from the District Legal Services Authority, Learned Magistrate of the Trial Court in Crl.Misc 77/2008 directed notice to be issued to both the parties. This order of the Learned Magistrate was questioned before the Learned Addl. Sessions Judge, Bijapur in Crl.Revision Petition No. 156/2008 and the Learned Judge of the said Court held that the order of the Trial Court does not call for interference except in regard to some technical aspects in as much as issuing notice to the State as a party was not found to be of any necessity and consequently Learned Sessions Judge directed to array only the 2 respondent and the present petitioner as the parties by deleting the State from the proceedings. It is this order of the Learned Sessions Judge that is called in question.

4. I have heard Learned Counsels for the parties and perused the material placed.

5. Submission of the Learned Counsel for the petitioner Sri. Umesh v. Mamadapur is that the Trial Court was in error in issuing notice to the petitioner and the procedure followed is contrary to Section 12 of the Act 2005. In this regard the contention put forward is that before passing an order, the Magistrate shall take into account any Domestic Incident Report received by him from the Protection Officer or the Service Provider. Since in the instant case, as there was no report received either from the Protection Officer or from the Service Provider, the question of issuing notice to the petitioner does not arise. Further reference was also made to the definition of the Domestic Incident Report as found in Section 2(e) of the Act, 2005 and also Rule 5 of the Rules framed under the Act to submit that the Domestic Incident Report shall have to be in form No. 1. As such, the impugned order of the Trial Court, which has been confirmed by the Sessions Judge, cannot be sustained in law in view of the above provisions.

6. On the other hand Learned Counsel for the 2 respondent Sri. Sanjay A. Patil submitted that it is only pursuant to the report received from the District Legal Services Authority the Trial Court thought it fit to issue notice to the respondent and 2 respondent has filed petition under Section 12 of the Act and said petition is under consideration and no order has been passed on the said application in view of the petitioner having approached this Court and having obtained interim order of stay.

7. It is his further submission that the Act itself provides for conciliation in the sense, Section 14 of the Act also empowers the Magistrate to direct the parties to undergo counselling and therefore the procedure followed is not violative of any of the provisions of the Act 2005.

8. The main contention of the petitioner's Counsel is that before passing an order the Magistrate is required to take into account any Domestic Incident Report received by him from the Protection Officer or the Service Provider. In the instant case, the facts are not in dispute in as much as the 2 respondent first approached the District Legal Services Authority for relief and the District Legal Services Authority in turn took up the matter in Lok Adalat and passed an order on 28.03.2008 as under;

“Dist. Legal Services Authority Bijapur.

In the matter of

1) Mrs. Gouri Nayanakumar Jogur—Appellant;

Versus

2) Mr. Nayanakumar Jogur

28.3.2008 Taken up before Lok Adalat.

The matter is taken up before the Lok Adalat.

Petitioner Gouri present. The other party was also secured. The petitioner Gouri has shown the copy of the marriage registration certificate, zerox copy of the agreement in respect of rented house taken by them at Nelamangala and some other photos to indicate that they were moving together. Inspite of long deliberation the respondent/Nayankumar and his parents are not ready for the compromise. It is revealed that Civil and Criminal cases are pending between the parties at Nelamangala as well as at Bijapur. On perusal of contents of the petition, it is better to refer the matter to the jurisdiction Magistrate to take further information from the petitioner/Gouri and to do needful in accordance with Protection of Women from Domestic Violence Act 2005.

Sd/- 28.3.2008

Conciliators

S.S Angadi,

Advocate.

9. Pursuant to the order so passed as above, Learned Magistrate of the Trial Court directed issuance of notice to the parties by registering the case as Crl. Misc. No. 77/2008.

10. Section 12 of the Act, 2005 relevant for our purpose, reads as under:

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 injurie caused by the acts of domestic violence committed by the respondent:

(3)XXXXX

(4)XXXXX

(5 XXXXX”

11. A careful reading of the provisions contained in Section 12 makes it clear that it is only before passing an order on an application that is filed by aggrieved person, that the Magistrate is required to take into account any Domestic Incidental Report. In the instant case, the aggrieved party being the 2 respondent first approached the District Legal Services Authority for assistance and relief and the proceedings of the District Legal Services Authority in the Lok Adalat which has been referred to above also indicates that it is only upon the failure of Lok Adalat to bring the parties to arrive at compromise, that it was thought fit to refer the matter to the jurisdictional Magistrate as there was number of cases pending between the parties. It is thereafter wards that the Trial Court directed both the parties to appear before it as the 2 respondent filed petition/application under Section 12 of the Act. On said application Learned Magistrate has not passed any order and therefore a careful reading of the proviso to Section 12 makes it clear that the Magistrate shall have to take into account any domestic Incident report recieved by him before passing any order on the application filed by the aggrieved person.

12. In other words if there is a Domestic Incident Report that is received by the Magistrate either from the Protection Officer or from the Service Provider, then it becomes obligatory on the part of the Magistrate to take note of the said Domestic Incident Report before passing an order on the application filed by the aggrieved party. Therefore, the Section does not say that in every case an aggrieved person is bound to go before either the Protection Officer or the Service Provider. On the other hand, the scheme of the Act makes it clear that it is left to the choice of the aggrieved person to go before the Service Provider or the Protection Officer or to approach to the Magistrate under Section 12 of the Act.

13. It is only when the recourse is taken by the aggrieved person is to go before the Service Provider or the Protection Officer that the requirement of Section 10 & 9 of the Act comes into picture in so far as the functioning of the service Provider or the Protection Officer is concerned and it is only when the said authority decides to submit their report, report viz., Domestic Incident Report will have to be sent to the Magistrate in the required form as mentioned in Rule 5 of the Rules 2006.

14. In view of the above reasons, in the instant case as the aggrieved party that is 2 respondent herein approached the District Legal Services Authority and on failure of conciliation before said authority, the Conciliators referred the matter back to the Court and upon notice being issued to the parties, the aggrieved person then filed an application under Section 12 of the Act, the question of the Magistrate taking note of the Domestic Incident Report does not arise, as this is not a case where the aggrieved party approached either the Protection Officer or the Service Provider.

15. In the light of the above reasons. I do not find any error being committed either by the Learned Magistrate in directing the parties to appear before him or by the Learned Sessions Judge in confirming the order of the Trial Court. Petition therefore lacks merit and it is dismissed.