The main legal point established in the judgment is the interpretation of the scope of section 12 of the Domestic Violence Act, the meaning of 'any order', and the obligation of the Magistrate to consider the report of the Protection Officer.

JUDGMENT :

1. Invoking the jurisdiction under section 482 of the Code of Criminal Procedure challenging the illegal and arbitrary action of the respondent of instituting a false and frivolous case M.J.C. No. 59/2010 filed before Judicial Magistrate First Class, Hoshangabad under the Protection of Women from Domestic Violence Act, 2005 (in short be called as 'Domestic Violence Act'), petitioners have filed this petition seeking quashment of the same.

2. Petitioner No. 1 is the husband and petitioner No. 2 is the father-in-law of the complainant/respondent. It is said that the marriage of the petitioner No. 1 and respondent was solemnized on 22-2-2008 at Hoshangabad. After marriage, as alleged respondent was subjected to demand of dowry, cruelty and harassment, however, a complaint under section 12 of the Domestic Violence Act was filed on 14-9-2009 in the Court of Judicial Magistrate First Class, Hoshangabad whereupon notices were issued to the petitioners. On receiving the notice, a preliminary objection was filed by the petitioners which was rejected, thereafter reply has also been filed denying the allegations made in the complaint, and now, the case is at the stage of recording the evidence. In the meantime, present petition has been filed seeking quashment of the private complaint.

3. Learned counsel for the petitioners has put forth solitary contention seeking quashment of the private complaint, placing reliance on the judgment of this Court in the case of Shri Rama Singh vs. Smt. Maya Singh and others, reported in 2012(4) MPHT 169 and submits that taking cognizance by the Magistrate and to call upon the petitioners without asking and taking into consideration the report of the Protection Officer is in violation of the proviso to section 12 of the Domestic Violence Act. It is contended that the proviso to section 12 is mandatory as held in the said judgment therefore, without having a report of the Protection Officer, passing an order by the Magistrate to summon the petitioners is not in conformity to law, therefore, the proceedings may be quashed.

4. Learned counsel representing respondent referring to section 23 submits that the Magistrate under the Domestic Violence Act conferred with the power to grant interim and ex parte order. However, the connotation "before passing any order on such application the Magistrate shall consider domestic incidence report received by him" would not include an order of taking cognizance or summoning the petitioners and infact the report may be considered at the time of passing the final order. In support of his contention, reliance has been placed on a judgment of this Court in the case of Ajay Kant Sharma and others vs. Smt. Alka Sharma, reported in 2008 Cri.L.J 264. It is also urged that as per section 28(2), the Court may lay down its own procedure for disposal of the application under section 12 or under sub-section (2) of section 23, therefore, it do not preclude the Magistrate in exercising the power to take cognizance on having prima facie satisfied on the basis of material brought before him to summon the respondent, without the report of the Protection Officer or Service Provider. In such circumstances, the order passed by the Magistrate taking cognizance is in accordance with law and this petition seeking quashment in exercise of the powers under section 482 of the Criminal Procedure Code may be dismissed.

5. After hearing learned counsel appearing on behalf of both the parties, on the point in issue as advanced, this Court has earlier considered the scope of section 12 of Domestic Violence Act and its proviso. Firstly in the case of Ajay Kant Sharma (supra), learned Single Judge in Para-3 after referring section 12 has observed as under :-

"On perusal of the aforementioned proviso appended to the provision, it appears that before passing any order on the application, it is obligatory on a Magistrate to take into consideration any report received by him from the Protection Officer o