A magistrate is not obliged to call for and consider the Domestic Incident Report (DIR) before issuing notice to the respondent under Section 12(1) of the Protection of Woman from Domestic Violence Act.

RAVINDRA BHAT,J.

1. This judgment answers a reference to this Division Bench, requiring resolution of a conflict between the decision of two learned Single Judges of this Court on the question whether a magistrate can act straightaway on a complaint made by an aggrieved person, under the Protection of Woman from Domestic Violence Act, 2005 (hereafter “the Act”). A learned Single Judge had considered and ruled upon the scope and effect of different provisions in an earlier decision of this court. Another learned Single Judge by order dated 03.05.2012 referred the present matter to the Chief Justice for being placed before a Division Bench for consideration. In these circumstances, the reference was assigned to this Court for its opinion. The precise question which this Court is called upon to answer is whether calling for and considering the report of the Protection Officer under the Act is mandatory before the Court can issue notice to a Respondent in an application under Section 12 of the Act.

2. The issue arose in this case, before the learned single judge in the context of a challenge from the order dated 31st May, 2011 passed by the learned Metropolitan Magistrate in complaint case No. 934/2003 titled as Manjari Vs. Shambhu Prasad Singh. The magistrate (hereafter called “Trial Court”) issued notice to the Petitioner on a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short “D.V. Act”) without calling for a report from the Protection Officer; the Petitioner’s challenge to that order was rejected by a the Learned Additional Sessions Judge on 4th August, 2011 dismissing the appeal filed by the Petitioner. No discussion of the factual matrix of the case is required since it is only the question of law which has to be decided by this court.

3. Learned counsel for the petitioner contends that on an application u/s 12 of the D.V. Act, no notice can be issued to the respondent without calling for and considering the domestic incident report (DIR) from the Protection Officer. It is contended that the ruling in Bhupender Singh Mehra & Anr. Vs. State of NCT of Delhi & Anr. 2010 (4) JCC 2939 has spelt out that such a procedure bind the magistrate. The relevant portion of the said judgment is reproduced hereunder:

“Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of the Domestic Violence Rules. This proforma is in detailed analytical form where the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed.”

4. Counsel for the Petitioner relies on the Proviso to section 12 of the D.V. Act. He cited two judgments of the Madras High Court viz. Uma Narayan v. Mrs Priya Krishna Prasad (Criminal Originial Petition No 9277 of 2008 decided on 01.08.2008) and Murugan v. Kasimani (Crl.R.C. (MD) No. 1133 of 2008 decided on 19.08.2010). Reference was also made to Rules 4, 5, 6, 8 and 9 of the Protection of Women from Domestic Violence Rules, 2006 (in short “the Rules”).

5. On the other hand, counsel for the respondent contended that under Section 12 of the D.V. Act, the complainant herself has the right to apply to the Magistrate. Furthermore, reliance is placed on Section 23 which permits passing of ex-parte orders on the basis of an affidavit of the aggrieved person. It was urged that if legislative intent was that the magistrate should first issue notice to the Protection Officer, and then after securing the report of that officer, proceed to iss