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CALCUTTA HIGH COURT
Dipak Saha Ray, J.
Kajal Baran Das —Petitioner
versus
Smt. Santa Das @ Bag. —Opp. Party
CRR No. 2452 of 2009
Decided on 17.10.2012
Held: Now, on careful perusal of the Judgment passed by the learned Sessions Judge in Criminal Appeal No. 16 of 2008 it appears that the learned Appellate Court has also found that the learned Trial Court passed the said order after duly analysing the evidence on record and that the learned Trial Court has rightly arrived at a decision that the house in question belonged to the aggrieved Party/wife. The learned Appellate Court has also come to a decision that no illegality or impropriety has been made by the learned Trial Court in passing the order without considering any Domestic Incident Report.
In the instant case, after considering the evidence and materials on record, the learned Trial Court as well as the learned Appellate Court has come to a decision that the flat in question belongs in the name of the Aggrieved Party/Wife. Both the said learned Courts have also come to a conclusion that the Aggrieved Party subjected to Domestic violence and accordingly, the learned Trial Court has directed the Respondent/Husband not to commit any act of Domestic Violence and he was directed to remove himself from the shared house hold. The said direction of the learned Trial Court has also been affirmed by the learned Appellate Court. (Paras 12 & 13)
Now, on careful perusal of the Section 12(1) of the Act it appears that this Section does not go to show that an application seeking relief under the Act be accompanied with Domestic Incident Report. From the proviso to Section 12 of the Act it further appears that it is not obligatory for the Magistrate to call for the Domestic Incident Report from the Protection Officer or from the Service Provider; but it is mandatory on the part of the Magistrate to take into consideration any such report received by him from the Protection Officer or from the Service Provider. He may call for such report from the concerned Protection Officer and the said report shall be taken into consideration by the Court along with the application.
Admittedly, in this case, no Domestic Incident Report either from the Protection Officer or from the Service Provider was obtained and/or received by the learned Trial Court. In such circumstances, there was no report before the learned Magistrate which he could consider before passing the order dated 22.9.2008. Accordingly, it appears that there was no illegality or impropriety or material irregularity in passing the said order without considering the report which was not with the record. (Paras 18 & 19)
Result: Revision dismissed.
JUDGMENT
Dipak Saha Ray, J.— The present case arises out of an application Under Section 401/482 of the Code of Criminal Procedure, 1973.
2. It is directed against the judgment dated 9.6.2009 passed by the learned Sessions Judge, Barasat, North 24 Parganas in Criminal Appeal No. 16 of 2008 affirming the Judgment and order dated 22.9.2008 passed by the Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas in connection with Complaint Case No. 508 of 2008 Under Sections 18/19(b) of the Protection of Women from Domestic Violence Act, 2005.
3. The relevant facts of the present case are, in a nutshell, as follows:
The Wife/Opposite Party No. 1 herein as Petitioner/aggrieved person initiated a case Under Section 12 of the protection of Women from Domestic Violence Act, 2005 against her Husband/Petitioner herein praying for protection orders and residence orders as per the provisions of Section 18 and 19 of the said Act. The said case was registered as Complaint Case No. 508 of 2008. In the said complaint case the learned Trial Court by the order dated 22.09.2008 allowed the prayer of the Wife/Aggrieved person and the Husband/Petitioner herein was directed not to commit any domestic act of violence and to remove himself from the shared house-hold.
4. Being aggrieved by the said order, the present petitioner filed criminal appeal Under Section 29 of the said Act which was registered as criminal appeal No. 16 of 2008. The learned Sessions Judge dismissed the said appeal and affirmed the order dated 22.09.2008 passed by the learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas in Complaint Case No. 508 of 2008.
5. Being aggrieved by and dissatisfied with the impugned Judgment dated 9.6.2009, the Husband/Petitioner herein has preferred the instant revisional application.
6. The grievance of the Husband/Petitioner herein may be capsulated in a few sentences as follows:
The learned Trial Court as well as the learned Sessions Judge, North 24 Parganas, have failed to appreciate the case in its proper perspective and approached the case from a wrong angle and this has resulted in failure of justice. The learned Appellate Court has failed to take notice of the fact that proviso to Section 12(1) of the said Act was not complied with as after initiation of the Case Domestic Incident Report was not called for and that no such report was considered at the time of passing the order dated 22.9.2008.
7. After taking into consideration of all relevant facts and materials and giving due regard to the submission made by the learned counsel for both the parties, I think that the only point requiring adjudication is whether or not the impugned order dated 9.6.2009 passed by the learned Sessions Judge, North 24 Parganas, is liable to be set aside.
8. It is submitted by the learned Counsel for the petitioner that mandatory provision of the proviso to Section 12(1) of the Protection of Women from Domestic Violence Act, 2005 was not complied with at the time of passing the order dated 22.09.2008 by the learned Trial Court because at that time the Domestic Incident Report was not considered. It has also been submitted that the petitioner was directed to remove himself from the shared house-hold in spite of the fact that the said flat was purchased by the petitioner in the name of his wife.
9. The learned Advocate for Opposite Party No.1, on the other hand, has submitted that there is nothing wrong in both the orders dated 22.9.2008 and 9.6.2009. It is submitted that the learned Trial Court after considering the evidence on record rightly came to a decision that the Husband/Petitioner herein used to ill-treat and also used to inflict torture both physically and mentally upon the wife and accordingly, the order was passed directing the husband not to commit any act of Domestic Violence and to remove himself from the shared-house hold. It has been further submitted that the l
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