IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 Crl.MC.No. 3960 of 2009 ---------------------------------- (MC.NO.102/2009 OF JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY) .................... PETITIONER/SECOND RESPONDENT: ------------------------------------------------------ ABOOBACKER MASTER, POOVATHODUKAYIL HOUSE, KIZHAKOTHU P.O., VIA KODUVALLY, KOZHIKODE. BY ADV. MR.K.A.SALIL NARAYANAN. RESPONDENTS/PETITIONER & STATE: -------------------------------------------------------- 1. JASEENA K., D/O.UMMER, POOVATHODUKAYIL HOUSE, KIZHEKOTHU P.O., KODUVALLY VIA, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3960 OF 2009 =========================== Dated this the 8th day of December,2009 ORDER Petitioner is the second respondent in M.C.102/2009 on the file of Judicial First Class Magistrate Court-I, Thamarassery a complaint filed by the first respondent under section 12 of Protection of Women from Domestic Violence Act,2005. This petition is filed under section 482 of the Code of Criminal Procedure to quash the proceedings contending that the basic requirement of an application filed under section 12 of the Act is lacking and in such circumstance, learned Magistrate has no jurisdiction to take the case on file or pass any order. 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel is that in order to pass any order on an application filed under section 12 of the Act, Magistrate is bound to take into consideration a domestic incident report from the Protection Officer or service provider and as no such report was called for or received, Magistrate is not Crl.M.C.3960/2009 2 competent to pass any order in the application and therefore application is bad at the very inception. 4. On hearing the learned counsel, I do not find any reason to quash the proceedings as sought for. Firstly in Crl.M.C.2225/2009, this court has already held that Section 482 of the Code of Criminal Procedure is not to be invoked to quash an application filed under section 12 of the Act which is enacted to provide for a remedy under the civil law. Moreover, as I could see from Section 12, the Magistrate is not bound to call for a report from either the Protection Officer or the service provider before or after entertaining an application from an aggrieved person or a Protection Officer or any other person on behalf of an aggrieved person. Proviso to sub section (1) of Section 12 only provides that before passing any order on an application under section 12(1), the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or service provider. It is to be borne in mind that an application under sub section (1) of Section 12 could be filed either by aggrieved person or a Protection Officer or by any other person on behalf of the aggrieved person. If a Protection Officer is filing the application, necessarily there should be a domestic incident report from the Protection Officer. What Crl.M.C.3960/2009 3 is provided under the proviso is only that if a domestic incident report is received from the Protection Officer, before passing any order on an application filed under section 12(1), Magistrate is bound to take into consideration the same. It does not mean that Magistrate is, to call for a report in all cases, from the Protection Officer or service provider. Section 2(e) defines a domestic incident report means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person. Rule 5(1) of Protection of Women from Domestic Violence Rules provides that upon receipt of a complaint of domestic violence, the local Protection Officer shall record the Domestic Incident Report and submit it to the appropriate Magistrate. So also if the aggrieved person approaches the Service Provider he should on the request of the victim record a Domestic Incident Report and forward it to the Magistrate. If an application by an aggrieved person or by any other person on behalf of the aggrieved person could be filed under section 12, only after approaching the Protection Officer, it could be said that the Protection Officer or service provider has to inquire about the domestic incident and then file a Domestic Incident Report. When Section 12 enables an aggrieved person to directly file an Crl.M.C.3960/2009 4 application before the court without approaching the Protection Officer and neither the Act nor the Rules provide for getting a domestic incident report from the Protection Officer or the service provider by the Magistrate before passing any order under section 12, it cannot be said that an application filed under section 12 can be entertained by the Magistrate only on getting a Domestic Incident Report. Hence at its inception, for want of a domestic incident report, the application is bad as canvassed by the learned counsel cannot be accepted. 5. Moreover, when an order is passed in an application filed under section 12, under section 29 of the Act petitioner is entitled to file an appeal. In such an appeal petitioner is entitled to raise all the contentions, including the maintainability of the petition. In such circumstance petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006