1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO.99 OF 2011 (APPW) IN CRIMINAL WRIT PETITION NO.542 OF 2010 (Maroti s/o. Dewaji Lande .vs. Sau. Gangubai w/o. Maroti Lande and anr.) _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. Mr.Anubhav Mardikar, Adv. h/f. Mr.Rajnish Vyas, Adv. for the petitioner/applicant. CORAM : A.P.BHANGALE, J. DATED : SEPTEMBER 02, 2011. 1. Heard. 2. Learned Advocate for the applicant submitted that, at the time of hearing of Criminal Writ Petition No.542 of 2010, he had placed reliance upon the judgment delivered by Justice Mr.R.Y.Ganoo in Criminal Application No.2970 of 2008 (Nandkishor Damodar Vinchurkar .vs. Kavita Nandkishor Vinchurkar and another) reported in 2009 DGLS (Cri.) Soft 1588 in order to support the contention that, in absence of report from the Protection Officer, final order cannot be passed under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act of 2005'). According to the learned Advocate 2 for the applicant, the judgment, though was considered during the hearing, it does not find place in the oral judgment delivered by this Court in Criminal Writ Petition No.542 of 2010 on 9th August, 2011 and therefore, he prayed for to consider the Judgment in the case of Nandkishor Damodar Vinchurkar (cited supra). 3. It appears that, considering Section 12 of the Act of 2005 and the submissions made at bar, this Court had observed in paras 5 and 6 thus :- “ The point as regards calling of the report from the Protection Officer or Service Provider is concerned one will have to interpret provisions of section 12 of the Act and the said interpretation has to be in favour of the person, who is in need of maintenance and in particular interim maintenance. Report from the Protection Officer or Service Provider has to be gathered and it would assist the Court for the purposes of doing complete justice in the matter. At the same time, it is expected that the trial Court has to pass an interim order as early as possible. If the trial Court, who is required to pass an interim 3 order, keeps on waiting to get the report of the Protection Officer or Service Provider, it would entail the delay and the idea of considering the case of a needy person at the interim stage will be actually defeated. Therefore, I am inclined to observe that it is not necessary in each and every case to obtain a report from the Protection Officer or Service Provider to decide application for interim relief. If on the basis of record before the Court, the Court is in a position to arrive at a just and proper conclusion, it will be open for the Court to do so and decide the matter accordingly. In the present case, the applicant had filed reply to the application filed by non-applicants and therefore, necessary material was before the learned trial Judge to decide the question whether interim relief should be granted. The record has been considered and order has been passed. 6. In view of above discussion, the argument advanced by Mr.Chawre, learned Advocate for applicant, as regard obtaining report from the Protection Officer or Service Provider cannot be 4 accepted. Needless to mention that at the time of disposing of the application at final hearing, the trial Judge will have to comply with the provisions of section 12 of the said Act. “ 4. According to the learned Advocate for the applicant, therefore, before passing final order on the application u/s.12, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the Service Provider. The learned Advocate for the applicant wants to put emphasis on the submission that, before passing the final order, it is compulsory for the Magistrate to receive such report from the Protection Officer appointed under the Act, particularly, in view of the ruling in the case of Nandkishor Damodar Vinchurkar (cited supra). 5. At this stage, it is necessary to refer to the legal position in this regard. 6. Section 8 empowers the State Government to appoint, by notification in the Official Gazette, such number of Protection Officers in each District as it considers necessary and also to notify the 5 area in which such Protection Officer shall exercise the powers conferred and discharge the duties imposed under the Act. It also provides that the Protection Officers shall, as far as possible, be women and shall possess such qualifications and experience as may be laid down by the Central Government, by rules. The terms and conditions of service of the Protection Officer and the other officers subordinate to him may also be regulated by rules. Section 18 provides that the Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, may pass a protection order in favor of the aggrieved person. A protection order may contain an order prohibiting the respondent from committing any act of domestic violence or aiding or abetting therein, entering the place of employment of the aggrieved person or if the person aggrieved is a child, its school, or any other place frequented by the aggrieved person or attempting to communicate in any form whatsoever with the aggrieved person without the leave of the Magistrate, alienating any assets, operating bank lockers or bank accounts belonging to both the parties jointly or to the respondent singly, 6 including her stridhan or any other property held jointly or separately by them, causing violence to the dependents, other relatives or any person giving the aggrieved person assistance from domestic violence or committing any other act as specified in the protection order. Section 30 seeks to provide that the Protection Officer and members of service providers shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code while acting or purporting to act under any of the provisions of the Act or the rules or orders made there under. The Protection Officer may assist the Magistrate in the discharge of his functions under the Act, and make a domestic incident report to the Magistrate. 7. Section 12 lays down that the aggrieved person or 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 the Act including order for payment of compensation or damages without prejudice to the rights of such person to institute a suit for compensation or damages for the injuries sustained in the act of domestic violence committed by the respondent. While disposing of 7 an application under sub-section (1), the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. If the aggrieved person so desires, he can make an application to the Magistrate praying for issuance of a protection order, ensure legal aid to the aggrieved person under the Legal Services Authorities Act, 1987, maintain a list of service providers, make available a safe shelter home if the aggrieved person so requires, get the aggrieved person medically examined if she has sustained bodily injuries, ensure that the order for monetary relief under section 20 of the Act is complied with and executed in accordance with the provisions of the Code of Criminal Procedure, 1973, and perform such other duties as may be laid down by the Central Government, by rules. It also stipulates that the Protection Officer shall be under the control and supervision of the Magistrate and perform the duties assigned to him by the Magistrate and the Government by or under the Act. Section 33 provides that any Protection Officer who fails or refuses to discharge his duties as directed by the Magistrate in the protection order shall be punished with imprisonment of either description which may extend to one year 8 or with fine which may extend to twenty thousand rupees or with both. 8. Thus, considering the above provisions, it appears crystal clear that unless the Protection Officer is appointed by the State Government under sub-section (1) of Section (8) for the area concerned in the District, there would be no occasion for the Magistrate to receive a report from the Protection Officer or the Service Provider duly appointed under the Act. Nothing is submitted before me as to whether in the impugned proceeding any protection order was passed u/s. 18 of the Act so as to require the Magistrate to await report from the Protection Officer or Service Provider. Under these circumstances, when no Protection Officer was appointed for the area concerned or when no protection order was passed, it cannot be said that proviso to Section 12 (1) of the Act of 2005 would come into play. In the impugned proceedings, there was no any application by the Protection Officer on behalf of the aggrieved person. It was an application by an aggrieved person in the impugned proceeding and no protection order was passed as contemplated under Section 18 of the Act. Nothing is submitted as to whether there was 9 any Protection Officer duly appointed for the area concerned of the district as contemplated under Section 12 (n) or Service Provider as contemplated under Section 2(r) so as to require the Magistrate to await report of domestic incident from the Protection Officer or the Service Provider before passing final order in respect of the application u/s.12. 9. Under these circumstances, the ruling in the case of Nandkishor Damodhar Vinchurkar (cited supra) appears per incuriam of the relevant provisions of the Act. This Court had considered the latest rulings on the subject while passing the final order in Criminal Writ Petition No.542 of 2010. The application for modification of the order, therefore, is meritless. Even otherwise, in view of Section 362 of the Criminal Procedure Code, there is a bar for this Court to alter or review the judgment or order once it is signed except to correct a clerical or arithmetical error. Hence, the application is rejected. JUDGE jais