DELHI HIGH COURT
S. Ravindra Bhat and S.P. Garg, JJ.
Shambhu Prasad Singh —Petitioner
versus
Manjari —Respondent
Cri MC 3083 of 2011 and Crl. M.A. 10914 of 2011
Decided on 17.5.2012

IMPORTANT POINT
A Magistrate, when Petitioned under Section 12(1) is not obliged to call for and consider the DIR before issuing notice to the respondent. However, if the DIR has already been submitted, that should be considered, in view of the proviso to Section 12(1).

Headnote:Protection of Women from Domestic Violence Act, 2005—Sections 12, 23 r/w Rule 16(2) and proviso to Rule 17(2) —Whether a Magistrate could act straight away on a complaint made by aggrieved person under the Act? Yes—Whether calling for and considering report of Protection Officer under the Act was mandatory before the Court could issue notice to respondent in an application under Section 12 of the Act? No.

       Held: This Court notices that Section 23 empowers the Magistrate to pass such ex parte ad interim orders as he may deem just and proper, based only on the affidavit of the aggrieved person. Nowhere does this provision express or imply by necessary intendment that the consideration of the DIR is obligatory. Since an ex parte interim order may be granted immediately upon institution of the complaint, it is likely that the Protection officer’s DIR may not be prepared by then. Thus, the Magistrate is definitely empowered to exercise this power, and pass interim order(s) against the concerned respondent. If this can be done without considering the DIR, then certainly notice to the respondent must also be allowed to be served without first considering the DIR.

       It is noteworthy that Section 12(1) does not mandate that an application seeking relief under the Act be accompanied with the DIR or even that it should be moved by a Protection Officer. Even Rule 6 which stipulates the form and manner of making an application to the Magistrate does not require that the DIR must accompany an application for relief made under Section 12. It is only the proviso to Section 12(1) which mandates that the Magistrate shall consider the DIR “received by him from the Protection Officer or the service provider”. No obligation to call for the DIR has been imposed upon the Magistrate. The plenitude of the power under Section 12, to pass appropriate orders, upon the application by “an aggrieved person” i.e. the victim of domestic violence is thus emphasized. A unique feature which the Court has to keep in mind is that the opening phrase in Section 12 are wide (“An aggrieved person or a 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 this Act... “If Parliament had intended that a report of the Protection Officer is a pre-condition for the Magistrate to act upon the complaint of an aggrieved person, or someone acting on her behalf, it would have expressed that intention more clearly. The Court instead, is circuitously asked to interpret that provision, in the light of a Proviso, which is contextual, rather than compulsive. (Paras 12 & 13)

       The proviso to Section 12 obliges the Court to, “before passing any order on such application ..... take into consideration any domestic incident report received by him from the Protection Officer or the service provider.” The plenitude of the jurisdiction conferred by Section 12 is in no way affected by the proviso; all that it mandates is that before any order is made on an application (under Section 12) the Magistrate “shall” take into consideration “any” report made by the Protection Officer. It is one thing to say that Parliamentary mandate to the Court is to take into consideration, in every case, a Protection Officers’ report, as a precondition for exercise of jurisdiction - as the petitioner contends and entirely another to say that if “any” such report is available, it shall be considered. This clear cut difference, in our opinion was lost sight of by the Single Judge in Bhupender Singh Mehra’s case. If Parliament had indeed mandated that in every case the Court was obliged to call for a Protection Officer’s report, and thereafter proceed with the complaint, the structure of Section 12 would have been entirely different. Such intention would have been expressed in more definitive, or imperative terms. In this context, this Court is also unpersuaded by the Petitioner’s argument that Rule 6 and the form appended to the rules have to be read into Section 12, to discern the precondition urged. This Court sees no need to do so; it would result in artificially curtailing what is otherwise a wide power. (Para 14)

       To conclude we answer the question referred to the Court in the negative a Magistrate, when Petitioned under Section 12(1) is not obliged to call for and consider the DIR before issuing notice to the respondent. However, if the DIR has already been submitted, that should be considered, in view of the proviso to Section 12(1). (Para 19)

       Result: Petition dismissed.