ShirIn Vs. Smt. Kavita - Court Judgment

SooperKanoon Citationsooperkanoon.com/1053598
CourtMadhya Pradesh High Court
Decided OnMar-21-2013
AppellantShirin
RespondentSmt. Kavita
Excerpt:
m.cr.c.no.12444 of 2012 m.cr.c.no.12444 o”21. 03.2013 shri g.s.rajput, learned counsel for the applicants. shri awinash jargar, learned counsel for the respondent. in compliance of the earlier direction, this case is listed today for final hearing at motion stage, hence with the consent of the parties, the same is heard finally. order (oral) (1) the applicants who are impleaded as not applicants before the trial court in application filed by the respondent under section 12 of the protection of women from domestic violation act 2005, in short “the act”., have filed this petition being aggrieved by the order dated 13.7.2012, passed by the chief judicial magistrate, khandwa, in mj.no.175/12, whereby taking the cognizance on the aforesaid application the direction to issue the notices of the same to the applicants has been passed. the prayer for quashment of such entire proceeding is made in this petition. (2) after taking me through the entire papers placed on record alongwith the aforesaid order, the applicants' counsel by referring the earlier decision of this court in the matter of shri rama singh versus smt. maya singh and others m.cr.c.no.12444 of 2012 reported in 2012 (4).m.p.h.t., 169, argued that above mentioned court has taken over the cognizance against the applicant on the aforesaid application without complying with the mandatory provision of section 12 of the act as such, before issuing the process against the applicants in view of the mandatory provision, the trial court was bound to call and consider the report of the protection officer. in continuation he said that it is apparent fact that such report was neither called not considered and in such premises, the impugned order as well as proceeding is not sustainable and prayed for quashment of the aforesaid application by admitting and allowing this petition. (3) shri avinash jargar, learned appearing counsel for the respondent after going though the aforesaid cited case law has fairly submitted that the impugned notices were directed to the applicants without calling the requisite report of protection officer and said that in view of the observation of the para 12 of the aforesaid cited case, this case be remitted back to the trial court with some direction to consider afresh after calling the report of the protection officer and prayed to dispose of this petition accordingly. m.cr.c.no.12444 of 2012 (4) keeping in view the aforesaid arguments, i have carefully gone through the papers placed on record alongwith the petition, so also the decision of the case “shri rama singh”., (supra).after perusing the same, i am of the considered view that the impugned order of the trial court taking cognizance in the matter and directing the notices of said application of the respondent to the applicants being passed without calling the report of the protection officer in compliance of mandatory provision of the act is not sustainable and consequently the same is set aside. (5) setting aside the impugned order does not mean that the impugned application of the respondent is being quashed by this court. in the available scenario of the case keeping in view the related mandatory provision of the act alongwith the observation made in para 12 of aforesaid cited case, after setting aside the impugned order this case is remitted back to the trial court with certain directions. (6) in view of the aforesaid, i deem fit to reproduce the para 12 of the case law of “shri rama singh”., (supra) as ready reference. the same is read as under:- “12. in the ordinary course, the matter would have been remanded for recording a reasoned m.cr.c.no.12444 of 2012 order, but i refrain from doing so simply because even if the allegations made against the petitioners in the application, are taken at their face value and accepted in their entirety, no justification for initiation of action against them would be made out in view of the admitted fact that during the relevant period, they were residing separately from the respondent. as such, the matter falls under categories (1).(5) and (7) of the cases, as enumerated in state of haryana versus bhajan lal, air 199.sc 604.attracting interference under the inherent powers.” (7) in view of aforesaid observation of the cited case on going through the impugned application of the respondent, i have found some substance and circumstances to consider the matter by the trial court, which could not be carried out by this court at this stage, so also without calling the report of the protection officer. therefore, after setting aside the impugned order, as stated above, this case is remitted back to the trial court with a direction to reconsider the matter after calling the report from the protection officer under the mandatory provision of the act. it is made clear that the trial court shall be liberty to decide the matter without m.cr.c.no.12444 of 2012 influencing from any observation or the finding made by this court on merits in the present matter. (8) the petition is allowed as indicated above. (9) c c as per rules. (u.c.maheshwari) judge bks
Judgment:

M.Cr.C.No.12444 of 2012 M.Cr.C.No.12444 o”

21. 03.2013 Shri G.S.Rajput, learned counsel for the applicants.

Shri Awinash Jargar, learned counsel for the respondent.

In compliance of the earlier direction, this case is listed today for final hearing at motion stage, hence with the consent of the parties, the same is heard finally.

ORDER

(Oral) (1) The applicants who are impleaded as not applicants before the trial court in application filed by the respondent under Section 12 of the Protection of Women from Domestic Violation Act 2005, in short “The Act”., have filed this petition being aggrieved by the order dated 13.7.2012, passed by the Chief Judicial Magistrate, Khandwa, in MJ.No.175/12, whereby taking the cognizance on the aforesaid application the direction to issue the notices of the same to the applicants has been passed.

The prayer for quashment of such entire proceeding is made in this petition.

(2) After taking me through the entire papers placed on record alongwith the aforesaid order, the applicants' counsel by referring the earlier decision of this court in the matter of Shri Rama Singh versus Smt.

Maya Singh and others M.Cr.C.No.12444 of 2012 reported in 2012 (4).M.P.H.T., 169, argued that above mentioned court has taken over the cognizance against the applicant on the aforesaid application without complying with the mandatory provision of Section 12 of the Act as such, before issuing the process against the applicants in view of the mandatory provision, the trial court was bound to call and consider the report of the Protection Officer.

In continuation he said that it is apparent fact that such report was neither called not considered and in such premises, the impugned order as well as proceeding is not sustainable and prayed for quashment of the aforesaid application by admitting and allowing this petition.

(3) Shri Avinash Jargar, learned appearing counsel for the respondent after going though the aforesaid cited case law has fairly submitted that the impugned notices were directed to the applicants without calling the requisite report of Protection Officer and said that in view of the observation of the para 12 of the aforesaid cited case, this case be remitted back to the trial court with some direction to consider afresh after calling the report of the Protection Officer and prayed to dispose of this petition accordingly.

M.Cr.C.No.12444 of 2012 (4) Keeping in view the aforesaid arguments, I have carefully gone through the papers placed on record alongwith the petition, so also the decision of the case “Shri Rama Singh”., (supra).After perusing the same, I am of the considered view that the impugned order of the trial court taking cognizance in the matter and directing the notices of said application of the respondent to the applicants being passed without calling the report of the Protection Officer in compliance of mandatory provision of the Act is not sustainable and consequently the same is set aside.

(5) Setting aside the impugned order does not mean that the impugned application of the respondent is being quashed by this court.

In the available scenario of the case keeping in view the related mandatory provision of the Act alongwith the observation made in para 12 of aforesaid cited case, after setting aside the impugned order this case is remitted back to the trial court with certain directions.

(6) In view of the aforesaid, I deem fit to reproduce the para 12 of the case law of “Shri Rama Singh”., (supra) as ready reference.

The same is read as under:- “12.

In the ordinary course, the matter would have been remanded for recording a reasoned M.Cr.C.No.12444 of 2012 order, but I refrain from doing so simply because even if the allegations made against the petitioners in the application, are taken at their face value and accepted in their entirety, no justification for initiation of action against them would be made out in view of the admitted fact that during the relevant period, they were residing separately from the respondent.

As such, the matter falls under categories (1).(5) and (7) of the cases, as enumerated in State of Haryana versus Bhajan Lal, AIR 199.SC 604.attracting interference under the inherent powers.”

(7) In view of aforesaid observation of the cited case on going through the impugned application of the respondent, I have found some substance and circumstances to consider the matter by the trial court, which could not be carried out by this court at this stage, so also without calling the report of the Protection Officer.

Therefore, after setting aside the impugned order, as stated above, this case is remitted back to the trial court with a direction to reconsider the matter after calling the report from the Protection Officer under the mandatory provision of the Act.

It is made clear that the trial court shall be liberty to decide the matter without M.Cr.C.No.12444 of 2012 influencing from any observation or the finding made by this court on merits in the present matter.

(8) The petition is allowed as indicated above.

(9) C c as per rules.

(U.C.Maheshwari) Judge bks