Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri R.S. Pandey, Ms. Rajshree Malviya, learned counsels for the applicants and Sri B.B. Upadhyay, learned counsel for the State and perused the record.

3. The present application u/s 482 Cr.P.C. has been filed by the applicants Abhishek Gaur, Pradeep Gaur, Smt. Saroj Gaur, Abhinaw Gaur, Anamika Gaur, with the following prayers:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the Criminal Complaint Case No. 4031 of 2019, dated 24.5.2019, under Section 12 of Protection of Women from Domestic Violence Act, 2005, Police Station Kakadeo, District Kanpur Nagar, Smt. Sarita Gaur versus Abhishek Gaur and others, pending before M.M. II, Kanpur Nagar, accordingly allow the present petition with cost.

It is further prayed that this Hon'ble Court be pleased to stay the criminal proceeding of Criminal Complaint Case No. 4031 of 2019, dated 24.5.2019, under Section 12 of Protection of Women from Domestic Violence Act, 2005, Police Station Kakadeo, District Kanpur Nagar, Smt. Sarita Gaur versus Abhishek Gaur and others, pending before M.M. II, Kanpur Nagar, and/or may pass any other suitable order which this Hon'ble Court deems fit and proper in the interest of justice, otherwise applicants will suffer irreparable loss and injury."

4. Learned counsel for the applicants submits that the complaint under Section 12 of Domestic Violence Act was filed by the opposite party no. 2 on 24.5.2019 and on the same day the court concerned issued notice to the applicants through D.P.O. It is submitted that the same is totally illegal and not as per law. It is further submitted that Section 12 of Protection of Women from Domestic Violence Act, 2005 states as follows:-

"Section 12 of the Domestic Violence Act

12. Application to Magistrate.- Neutral Citation No. - 2023:AHC:87058 (1) 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:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing."

5. Learned counsel submitted that the proviso of 12(1) of the Domestic Violence Act provides that a report from Protection Officer or Service Provider is needed before passing any order on the complaint. He has relied upon the judgement of High Court of Delhi in the case of Bhupender Singh Mehra; Diwan Singh Mehra v/s State of NCT of Delhi &