Jharkhand High Court

Sangeet Kumar Dubey vs The State Of Jharkhand on 16 December, 2022

                                                    1                  Cr.M.P. No. 1697 of 2022


                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               Cr.M.P. No. 1697 of 2022
                  Sangeet Kumar Dubey, aged about 40 years, son of Late Ramesh
                  Kumar Dubey, resident of Shyamkunj, Circular Road, Bela Bagaan, P.O.
                  & PS. Deoghar, District- Deoghar, presently residing at House No. YB
                  339, NTPC, Anandam Colony, Sector B-6, Greater Noida, P.O., P.S. &
                  District- Noida (Uttar Pradesh)                 ... Petitioner
                                           -Versus-
             1.   The State of Jharkhand
             2.   Kirti Kumari, daughter of Karunesh Kumar Tiwari, resident of
                  Shyamkunj, Circular Road, Bela Bagaan, P.O. & P.S. Deoghar, District-
                  Deoghar                                         ... Opposite Parties
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             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----

             For the Petitioner             : Mr. Amit Kumar Sinha, Advocate

For the Opposite Party-State : Mr. Bhola Nath Ojha, A.P.P. For Opposite Party No.2 : Mr. Rahul Kumar, Advocate Ms. Apoorva Singh, Advocate

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05/16.12.2022. Heard Mr. Amit Kumar Sinha, learned counsel for the petitioner,

Mr. Bhola Nath Ojha, learned counsel for the State and Mr. Rahul Kumar,

learned counsel for opposite party no.2.

2. This petition has been filed for quashing the entire criminal

proceedings including the order dated 04.03.2022 by which notices have

been issued to the petitioner in connection with Complaint Case No.941 of

2021, registered for the offences under Section 12 of the Protection of

Women from Domestic Violence Act, 2005 (hereinafter to be referred to as'

the Act, 2005), pending in the court of the learned Judicial Magistrate, 1 st

Class, Deoghar.

3. The complaint case was filed by opposite party no.2 alleging therein

that she was married to the petitioner on 08.03.2019 at Deoghar. After the

marriage, Rs.11 Lakhs and some ornaments were handed over to the

petitioner. After some time of the marriage, the in-laws started to show

their displeasure with respect to the gifts brought by the opposite party

no.2. The demands started into tortures and infliction of the same and

some how she was beaten up. Family counselling were conducted but the

same was of no reason. The opposite party no.2 gave birth to a pre-

matured child but the petitioner still did not turn up to see the child. The

opposite party no.2 also mentions that the petitioner had filed a petition for

divorce at the courts in Uttar Pradesh as Matrimonial Suit No.1001 of 2020.

After institution of the said matrimonial suit, opposite party no.2 instituted

one FIR which has been registered as Deoghar Mahila P.S. Case No.24 of

2021. Opposite party no.2 was threatened to be removed of the house.

Hence, she complained about the same. The present complaint case was

filed by opposite party no.2 and the same has been registered as Complaint

Case No.941 of 2021 under Section 12 of the Act, 2005.

4. Mr. Amit Kumar Sinha, learned counsel for the petitioner submits that

the case was posted for hearing on 21.09.2021 and Domestic Violence

Report was called from the C.D.P.O., Deoghar vide order dated 01.12.2021.

He further submits that once again the said Report was called vide order

dated 22.01.2022, which was not received and in spite of that the learned

court has directed to issue notice vide order dated 24.02.2022, which is

against the mandate of law as envisaged under Sections 12 and 13 of the

Act, 2005. He further elaborates his argument by way of submitting that

once the learned court has called upon the report from the C.D.P.O.,

Deoghar, it was incumbent upon to wait for report and thereafter the notice

has to be issued. He submits that this aspect of the matter has been

considered by the Hon'ble Supreme Court in Prabha Tyagi v. Kamlesh

Devi; (2022 SCC OnLine SC 607).

5. On the other hand, Mr. Rahul Kumar, learned counsel appearing for

opposite party no.2 submits that it is a welfare legislation, wherein, it has

been envisaged that the matter must be concluded within 60 days in view

of Section 12(5) of the Act, 2005. He further submits that an application

was filed directly before the learned court and it was not filed through the

Protection Officer. He also submits that once the case is filed directly to the

learned court, the learned court is empowered to decide the procedure and

statute has also provided the same under Section 28(2) of the Act, 2005.

On these grounds, he submits that there is no illegality in issuing the notice.

He further submits that the petitioner can agitate all his grounds before the

learned court where the matter is still pending. He placed reliance upon

paragraph 65 of the judgment passed in Prabha Tyagi (supra).

6. Paragraph 65 of the said judgment is quoted herein below:

"65. On a conjoint reading of the aforesaid provisions, it is clear that an aggrieved person on her own or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the DV Act but the proviso states that when a domestic incident reported is received by the Magistrate from the Protection Officer or the service provider, in such a case, the same shall be taken into consideration. Therefore, when an aggrieved person files an application by herself or with the assistance of an advocate and not with the assistance of the Protection Officer or a service provider, in such a case, the role of the Protection Officer or a service provider is not envisaged. Obviously, there would be no domestic incident report received by a Magistrate from the Protection Officer or a service provider."

7. Mr. Bhola Nath Ojha, learned counsel for the State submits that the

learned court has decided to issue notice and there are provisions to decide

that procedure under Section 28(2) of the Act, 2005. In that view of the

matter, there is no illegality in issuance of notice.

8. In view of the above facts and submissions of the learned counsel for

the parties, the Court has gone through the materials on the record and

finds that admittedly the complaint case was filed directly before the

learned Judicial Magistrate, 1st Class, Deoghar and it was not filed through

Protection Officer, as per the procedure as prescribed. The learned court

decided to call for the report, however the same was not received and

considering the urgency in the matter, as has been envisaged under Sub-

section (5) of Section 12 of the Act, 2005, the learned court has decided to

issue notice. Moreover, the procedural aspect has been prescribed in the

statute itself under Sub-section (2) of Section 28 of the Act. For ready

reference, Section 28 of the Act, 2005 is referred herein below:

"28. Procedure-(1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23. "

9. Looking into the said provision, it is crystal clear that Sub-section (2)

of Section 28 envisaged that the court may lay down its own procedure for

disposal of an application. Thus, it is clear that apart from waiting for the

report, it is open to the learned court to follow its own procedure to dispose

of the application filed under the Act. The competency to proceed further in

absence of report has also been discussed by the Hon'ble Supreme Court in

Prabha Tyagi (supra) in paragraph 58 of the judgment, which is quoted

herein below:

"58.Further, the expression "family members living together as a joint family" is not relatable only to relationship through consanguinity, marriage or adoption. As observed above, the expression "joint family" does not mean a joint family as understood in Hindu law. It would mean persons living together jointly as a family. It would include not only family members living together when they are related by

consanguinity, marriage or adoption but also those persons who are living together or jointly as a joint family such as foster children who live with other members who are related by consanguinity, marriage or by adoption. Therefore, when any woman is in a domestic relationship as discussed above, is subjected to any act of domestic violence and becomes an aggrieved person, she is entitled to avail the remedies under the DV Act."

10. It is well settled that a procedural law is always in aid of justice, not

in contradiction or to defeat the very object which is sought to be achieved.

A reference may be made to the judgment passed by the Hon'ble Supreme

Court in Saiyad Mohammad Bakar El-Edroos (dead) by LRS v.

Abdulhabib Hasan Arab and others; [(1998) 4 SCC 343] . Paragraph 8

of the said judgment is quoted herein below:

"8. A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away by the procedural law what is given by the substantive law."

11. In view of the above facts, reasons and analysis, there is no illegality

in issuing the notice by the learned court.

12. Accordingly, this petition stands dismissed.

13. However, the petitioner is at liberty to take all the grounds before the

learned court, which will be decided by the learned court in accordance with

law, without prejudiced to this order.