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2015 Supreme(Chh) 255
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Hitesh Mishra - Appellants
Vs.
Pushpa Mishra - Respondent
Criminal Revision No. 419 of 2015
Decided On : 30-09-2015
For the Appellant :Vivek Shrivastava, Advocate
For the Respondent:Dharmesh Shrivastava, Advocate
Headnote:
Protection of Women from Domestic Violence Act, 2005 - Section 12 – Criminal Procedure Code - Section 401/ 397 - Code of Civil Procedure, 1908 - Order 5 - Questioning The Impugned – Employment And Service – Jurisdiction - Referring to Section 13(2) of PWDV Act, he would also submit that according to Section 13(2) of PWDV Act, declaration of service of notice made by the Protection Officer shall be proof that such notice was served upon the respondent - He would lastly submit that the Protection of Women from Domestic Violence Rules, 2006 have been framed. Rule 12 of the said Rules provides means of service of notices and as such, Order 5 of Code of Civil Procedure, 1908 would be applicable - Order 5 Rule17 of the CPC which requires affidavit of the serving officer has neither been filed nor he has been examined to prove the impugned refusal by present petitioner and, therefore, the order impugned is unsustainable and bad in law – Held, A bare perusal of the aforesaid order would show that on receipt of report by serving officer/Protection Officer trial Court has accepted the same as it is and did not seek affidavit of serving officer/Protection Officer as required under Order 5 Rule 19 of the Code, but has also not taken care to get the Protection Officer examined to hold that petitioner had refused to accept notice and thereby he was duly served. Even otherwise, the trial Court has failed to perform its duty mandated under Order 5 Rule 19 of Code to declare finally that the petitioner was duly served. Merely accepting report as it is and proceeding ex parte against the petitioner is not the proper way to comply the mandatory provisions contained in Order 5 Rule 19 of Code as such it is held that the petitioner was not duly served in a proceeding initiated by the respondent under Section 12 of the PWDV Act and the trial Magistrate was absolutely unjustified in proceeding ex parte and passing ex parte order against the petitioner - In appeal preferred by the petitioner under Section 29 of the PWDV Act, it was incumbent upon the appellate Court to find out as to whether the petitioner was duly served or not, but the appellate Court has performed its duty in perfunctory manner by holding that the petitioners address given in summons and the address given by petitioner in appeal tallies and, therefore, he was duly served and there is no ground to interfere with the order passed by trial Magistrate - As such, the order of the Court of Session affirming the order of the trial Court cannot be upheld – Petition allowed
Summary of Judgment
Case Overview [10000052200001] (!) :
Smt. Pushpa Mishra (respondent-wife) filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act), seeking reliefs under Sections 17-23. The trial Magistrate issued notice via the Protection Officer on 26-8-2013. The Protection Officer reported on 31-10-2013 that the petitioner-husband and others refused the notice. On 8-11-2013, the Magistrate proceeded ex parte without verifying service, and on 28-11-2013, granted reliefs to the wife. The petitioner appealed under Section 29 of the PWDV Act, but the Sessions Court affirmed the orders, noting matching addresses in summons and appeal memo [10000052200001][10000052200016][10000052200017][10000052200018].
Petitioner's Arguments [10000052200001][10000052200002]:
The petitioner challenged the ex parte proceedings via revision under Sections 397/401 CrPC, arguing improper service under Section 13 PWDV Act. Service must follow Rule 12 PWDV Rules, incorporating Order V CPC (Rules 17 & 19). No affidavit or examination of the Protection Officer occurred to prove refusal, rendering the orders illegal [10000052200001].
Respondent's Defense [10000052200002]:
The Protection Officer's report of refusal sufficed under the PWDV Act and Rules [10000052200002].
Key Legal Analysis [10000052200004][10000052200005] (!) (!) [10000052200006] (!) (!) (!) (!) (!) [10000052200007] (!) [10000052200008] (!) [10000052200009][10000052200010][10000052200011]:
- Section 13(1) PWDV Act mandates notice service via Protection Officer within 2 days (extendable). Section 13(2) deems the Officer's declaration proof unless rebutted (!) (!) .
- Rule 12(2)(c) PWDV Rules applies Order V CPC or CrPC Chapter VI "as far as practicable" (!) (!) .
- Order V Rule 17 CPC requires a detailed report for refusal/non-availability, including affixture and identifiers (!) [10000052200009].
- Order V Rule 19 CPC mandates court examination of the serving officer (on oath, if no affidavit) and a declaration of due service before ex parte proceedings (!) [10000052200010][10000052200011]. These are mandatory [10000052200015].
Court's Findings [10000052200016][10000052200017][10000052200018]:
The trial Court mechanically accepted the Protection Officer's bare report without affidavit, examination, or Rule 19 declaration, failing to detail refusal/affixture per Rule 17. No due service occurred. The appellate Court perfunctorily affirmed based on address match, ignoring service verification [10000052200016][10000052200017][10000052200018].
Decision [10000052200019][10000052200020]:
Revision allowed. Ex parte order (8-11-2013) and final order (28-11-2013) set aside, along with appellate affirmation. Section 12 application restored to Judicial Magistrate First Class, Bilaspur, for expeditious disposal (within 3 months). Parties to appear on 20-10-2015 [10000052200019][10000052200020].
Sanjay K. Agrawal, J.
1. Smt. Pushpa Mishra, wife of the petitioner - the respondent herein, filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the PWDV Act') claiming relief as provided under Sections 17 to 23 of the said Act. The said application was filed on 26-8-2013 before the Court having jurisdiction to try that application and on the same day, the learned trial Magistrate directed for issuance of notice to the present petitioner through the Protection Officer. The Protection Officer submitted a report on 31-10-2013 that the present petitioner and four others have refused to accept the notice issued by the Court and, therefore, by order dated 8-11-2013, the trial Court proceeded ex parte and by order dated 28-11-2013, finally, the application filed by the respondent was allowed granting certain reliefs to her. Feeling aggrieved and dissatisfied against the order granting reliefs to the respondent herein, the present petitioner preferred Cr. A. No. 114/2014 before the Court of Session and the learned Sessions Court by its impugned order affirmed the order of the trial Magistrate holding that the petitioner was duly served and as such, the order of the Magistrate is unassailable and dismissed the appeal. Invoking the jurisdiction of this Court under Section 397 read with Section 401 of the Cr.P.C., the petitioner herein has filed this revision petition questioning the impugned order affirming the order of the trial Magistrate proceeding ex parte and granting reliefs to the respondent wife.
2. Mr. Vivek Shrivastava, learned counsel appearing for the petitioner-husband, would submit that the trial Magistrate has committed a manifest illegality in proceeding ex parte against the petitioner on 8-11-2013 and the learned Sessions Judge has perpetuated the illegality by rejecting the appeal preferred under Section 29 of the PWDV Act. Elaborating his submissions, he would further submit that the notice of Section 12 application has to be served in the manner prescribed under Section 13 of the PWDV Act. Referring to Section 13(2) of the PWDV Act, he would also submit that according to Section 13(2) of the PWDV Act, declaration of service of notice made by the Protection Officer shall be proof that such notice was served upon the respondent. He would lastly submit that the Protection of Women from Domestic Violence Rules, 2006 have been framed. Rule 12 of the said Rules provides means of service of notices and as such, Order 5 of the Code of Civil Procedure, 1908 would be applicable. Order 5 Rule17 of the CPC which requires affidavit of the serving officer has neither been filed nor he has been examined to prove the impugned refusal by the present petitioner and, therefore, the order impugned is unsustainable and bad in law.
3. Per contra, Mr. Dharmesh Shrivastava, learned counsel appearing for the respondent - wife, would submit that the Protection Officer has submitted report to the concerned Magistrate that the present petitioner has refused to accept notice on 31-10-2013 and as such, there is sufficient compliance of the provisions of the PWDV Act as well as the Rules framed thereunder and, therefore, the revision petition deserves to be dismissed.
4. I have heard learned counsel appearing for the parties and considered the rival submissions made therein and also perused the original record.
5. The short question emanating for consideration would be whether the present petitioner was duly served in a proceeding under Section 12 of the PWDV Act.
6. In order to consider the plea raised at the Bar, it would be appropriate to set out the relevant provision governing the service of notice to the opposite party against whom the relief is sought. Section 13 of the PWDV Act provides for service of notice. It reads as follows:--
"13. Service of notice.--(1) A notice of the date of hearing fixed under section 12 shall be given the Magistrate to the Protection Officer, who shall g
