THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR
Criminal Petition No. 3873 of 2009
05.01.2012
M. Jayamma
The State of AP, rep. by its Public Prosecutor, High Court of AP., Hyderabad
and another
Counsel for the Petitioner: Sri K. Maheswar Rao
Counsel for Respondent No.1: Public Prosecutor
Counsel for Respondent No.2: Sri I. Venkata Prasad
Order:
This Criminal Petition, under Section 482 Cr.P.C., is filed by the
petitioner to quash the docket order dated 12.05.2009 made in C.F. No.1408 of
2009 in C.C. No.Nil of 2009 on the file of Judicial Magistrate of First Class,
Dharmavaram, Anantapur district, and consequently direct the Magistrate to
register the complaint and try the case as per the provisions of the Protection
of Women from Domestic Violence Act, 2005 (for short 'the Act').
The petitioner herein is the complainant before the lower Court. She
filed an application under Section 12 of the Act. The learned Magistrate
returned the same with an endorsement "Complaint is to be filed before the
Project Officer". Challenging the same, this petition has been filed.
Section 12 of the Act is 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."
The above provision is very clear that an aggrieved person or a Protection
Officer or any other person on behalf of the aggrieved person may present an
application to the Magistrate. The said provision does not say that unless an
aggrieved person approaches the Protection Officer, she cannot file an
application under Section 12 of the Act. Even Form-II shows that an application
may be filed either by an aggrieved person or a Protection Officer or any other
person on behalf of the aggrieved person. The proviso only says 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. It has to be seen that under sub-section (5)
of Section 12 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. Under sub-section (4) of Section 12 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.
The above provisions make it clear the need to dispose of the matters
urgently. The duties of the police officers and service providers are envisaged
under Section 5 of the Act and under Section 9 of the Act the Protection
Officers have to assist the Magistrate in discharge of his functions under the
provisions of the Act. The Magistrate may utilize the services of the
Protection Officer and call for a report under the provisions of the Act. In
view of the clear provisions of the Act, the impugned order appears to be
without jurisdiction and the same is liable to be set aside.
Accordingly, the Criminal Petition is allowed and the impugned order is
set aside. The learned Magistrate is directed to entertain the application
filed by the petitioner and proceed in accordance with law.
_______________________
B. CHANDRA KUMAR, J.
Date: 05.01.2012
