Jawad Rahim, J.
1. Revision under Section 397 of the Code of Criminal Procedure is directed against the judgment in Criminal Appeal No. 84/2009 dated 15-4-2009 on the file of the Judge, Fast Track Court, Bangalore.
2. The matter is listed for admission. Considering the nature of the litigation between the parties, I have heard the learned Counsel for the petitioner.
3. Petitioner is the wife of the 3rd respondent M. Bhaskar. According to her, their marriage was solemnized according to the Hindu Rites. It is her case that out of valid matrimonial relationship, a daughter is born. The third respondent at the instigation of and in connivance of other respondents indulged in and committed the acts, which constitute domestic violence. He deprived her and her daughter the means of sustenance, comfort and consortium of life, because of which violent acts perpetrated on her, her life become miserable and she has no solace. Time and again, efforts were made to reason out with him. His parents and other relatives instead of advising him on the right side, advised him wrongly, which aggravated the situation. Consequent to such problem, perforce she took shelter in the house of her parents with her child. She alleges that even while she was staying with her parents, her husband M. Bhaskar continued to torture her mentally and physically. In one of such incident, he injured both her hands and also caused other injuries. On a police complaint by her parents, he was arraigned as accused and the proceedings are pending investigation.
4. It is further alleged that since he neglected and committed all acts which constitute domestic violence, the petition invoking Section 12 of the Act was submitted which was investigated by a Competent Officer. On a petition before the Magistrate under Section 12 of the Act, action was taken and the third respondent was summoned.
5. During the course of the proceedings, the learned Magistrate had given him full opportunity and ascertained the actual dispute. The third respondent availed all opportunities as also the other respondents. During the course of enquiry, the petitioner was successful in establishing the matrimonial relationship and the act of domestic violence committed by the respondents. She also established willful and deliberate negligence and depriving the sustenance to her and her daughter. The learned Magistrate considered the materials placed on record and took note of the fact that there was no justification to the respondents to deprive the petitioner and her daughter the basic minimum sustenance and also held the third respondent responsible for her safe keep.
6. Noticing that he had established monthly salary of Rs. 12,000/- p.m. out of which, he was receiving net salary of Rs. 5,000/- p.m., learned Magistrate has held that he is a man of means.
7. Considering the request made by the petitioner to give her Rs. 5,000/- p.m. as maintenance and Rs. 5,000/- p.m. for her child as maintenance, Rs. 5,000/- p.m. towards medical expenses and Rs. 10,000/- p.a. towards educational expenses of her child, the learned Magistrate passed the impugned order directing the third respondent to pay Rs. 5,000/- p.m. and Rs. 5,000/- p.m. to her daughter as maintenance and Rs. 5,000/- towards medical expenses. Incidentally, the learned Magistrate has also directed the respondent to provide separate residence for petitioner and her daughter and restrained respondents from indulging in further domestic violence.
8. Aggrieved by the said order, the respondents were in Appeal No. 84/2009 before the learned Sessions Judge who after considering the grounds urged found that the learned Magistrate had not followed the procedure prescribed in the Code of Criminal Procedure to conduct enquiry under Section 12 of the Act for the alleged offences punishable under Sections 9, 21 and 23. On that basis, the learned Sessions Judge found that the order is unsustainable and set aside the same. The said order is under question in this revision.
9. In support of the revision, the learned Counsel submits that the learned Magistrate has followed his own procedure to conduct the enquiry which is permissible under sub Section 2 of Section 28 of the Protection of Women From Domestic Violence Act, 2005, He drew my attention to the said provision, which reads thus:
(2) Nothing in Sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under Sub-section (2) of Section 23.
10. He submits that this provision enabled the learned Magistrate to adopt his own procedure and in this case, the learned Magistrate had summoned the third respondent and other respondents and questioned and they were also allowed to file their counter.
Therefore, an opportunity was fully given. Me submits that the learned Sessions Judge had ignored this fact and has held that no proper opportunity was given. Secondly submits that the learned Sessions Judge, while setting aside the impugned order and remanding the matter has not ordered for payment of interim maintenance to the petitioner end her daughter which was already granted by the learned Magistrate. He relied upon a decision in the case of Abhijit Dhikaseth Auti v. State of Maharashtra and Anr. reported in AIR 2009 (BOM) 808 and another decision' in the case of Vishal Damodar Patil v. Vishakha Vishal Patil reported in .
11. The decisions cited by the learned Counsel have received my serious concern and they do not answer the issues raised in this petition. None of these decisions refer to Sub-section 2 of Section 28 of the Act. All it observes is that the interim relief under Section 23 could be granted by the learned Magistrate by permitting the parties to move a separate application and in such proceedings, detailed enquiry is not necessary.
12. I have heard him. At the outset, it needs to mentioned that there is no dispute about the matrimonial relationship between the parties as also the fact that the third respondent has regular income of Rs. 12,000/-p.m. out of which, he receives RS. 5,000/- p.m. as take home salary. The allegations made in the petition about the domestic violence are undoubtedly subject to proof. Conspectus of provisions of Protection of Women from Domestic Violence Act, 2005 make it abundantly clear that the aggrieved person has right to apply invoking Section 12 of the Act for benefits. The action from the Protection Officer on behalf of any other victim is also permissible. But the question is when such as application is moved, what procedure the Magistrate has to follow? Learned Counsel has referred to the provisions of Sub-section 2 of Section 28, which I have already extracted. But, such a submission undoubtedly is ignoring Sub-section (1) of Section 28, which reads thus:
(1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973.
13. Therefore, the procedure prescribed under Code of Criminal Procedure has to be followed while conducting the enquiry for the offences punishable under sections 12, 19, 20, 21, 22 and 23 However, under Sub-section (2) of Section 28 of the Act, the Court not prevented from laying down its own procedure for disposal of an application under Section 12 or under Sub-section (2) of Section 23. Therefore, the court is not prevented from laying down its own procedure. The words 'laying down its own procedure'' mean that the Court has to lay down its own procedure which it can adopt for such proceedings. In the instant case, it is not disputed that no such procedure has been laid down by the Court. Therefore, in the absence of any such procedure having been laid down, Sub-Section (1) of Section 28 of the Act becomes applicable and consequently the procedure prescribed under the Code of Criminal Procedure becomes applicable. There is no escape from this provision. Since there is no procedure so far laid by the court, the procedure under the Code of Criminal Procedure becomes applicable and undoubtedly the accused becomes entitled to all reliefs that is available under the Code of Criminal Procedure applicable for trial Summons case under the Summary trial.
14. In the instant case, the learned Magistrate has given no such relief to the third respondent or other respondents who were treated as accused. The learned Sessions Judge has noticed this and set aside the impugned order. There is no infirmity or illegality in the order passed by the learned Sessions Judge.
15. The other contention of the learned Counsel for the petitioner that the learned Sessions Judge while setting aside the order of maintenance has not passed any order regarding interim maintenance is also not tenable because there is clear observation by the learned Sessions Judge that the order passed by him will not come in the way of interim maintenance granted by the learned Magistrate, if an application is moved by the wife and on behalf of the child. In fact, it is noticed that till now, neither before the learned Magistrate nor before the learned Sessions Judge any such application is filed for grant of interim maintenance. Therefore, I do not find any support to the grounds urged in the revision.
16. In the result, the impugned order passed by the learned Magistrate in Criminal Appeal No. 84/2009 is affirmed. Revision Petition fails and the same is hereby dismissed. However, I feel that considering the circumstances in which the petitioner and her daughter are placed, it is desirable to direct the learned Magistrate to dispose of the matter at the earliest even though the statute fixes time, within a period of one month from today and also to consider the application if filed for grant of interim maintenance, within a period of one week from the date of filing of the application.