Dr. Hitesh vs Dr. Smt. Pritibala
2023 Latest Caselaw 6195 MP

                                                               1
                           IN     THE       HIGH        COURT OF MADHYA                        PRADESH
                                                          AT INDORE
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                  ON THE 18 th OF APRIL, 2023
                                          MISC. CRIMINAL CASE No. 15248 of 2023

                           BETWEEN:-
                           1.    DR. HITESH S/O SHRI SHIVLAL SOLANKI, AGED
                                 ABOUT 37 YEARS, OCCUPATION: DOCTOR R/O
                                 SENDHWA HALMUGAM INDORE (MADHYA
                                 PRADESH)

                           2.    SHIVLAL S/O SEKDIAJI SOLANKI, AGED ABOUT 55
                                 YEARS, OCCUPATION: N/A ENDHWA, BARWANI
                                 (MADHYA PRADESH)

                           3.    SMT. TARA W/O SHIVLAL SOLANKI, AGED ABOUT
                                 52 YEARS, OCCUPATION: HOUSE WIFE SENDHWA,
                                 BARWANI (MADHYA PRADESH)

                           4.    VIVEK S/O SHIVLAL SOLANKI, AGED ABOUT 25
                                 YEARS, OCCUPATION: STUDENT SARASWATI
                                 COLONY,   SENDHWA,   BARWANI    (MADHYA
                                 PRADESH)

                                                                                            .....APPLICANTS
                           (SHRI ARPIT GUPTA - ADVOCATE)

                           AND
                           DR. SMT. PRITIBALA W/O DR. HITESH SOLANKI, AGED
                           ABOUT 35 YEARS, OCCUPATION: DOCTOR R/O 8
                           SUBHASH MARG ABOVE BANK OF BARODA
                           ALIRAJPUR (MADHYA PRADESH)

                                                                                           .....RESPONDENT

                           This application coming on for          orders this day, the court passed the
                           following:
                                                                ORDER

1. This is an application filed under section 482 of the Cr.P.C for setting aside of non-bailable warrant against the applicants dated 25.03.2023 passed by CJM, Signature Not Verified Signed by: SOURABH YADAV Signing time: 19/04/2023 11:19:45 AM

Alirajpur, in MJCR No.158/2019.

2. The respondent has filed an application under section 12,18,19,20 and 22 of the Protection of Women From Domestic Violence Act (hereinafter referred as DV Act) against the applicants, whereby, the arrest warrants has been issued against the applicants.

3. Learned counsel for the applicants submits that the applicants are already being represented through counsel and the proceedings of DV Act are of civil nature and the Magistrate could not have issued arrest warrant in a proceedings under DV Act. The order is without jurisdiction.

4. It is submitted that the proceedings are of civil nature and therefore in

absence of the applicants, the court could have proceeded ex-partie. He has relied on a judgment passed by Madras High Court in the case of Dr.P. Pathmanathan and Ors. Vs. Tmt. V. Monica and Anr. reported in 2021 SCC Online Mad 8731. He has referred to para no.62 of the said order which reads as under:-

"i. An application under Section 12 of the D.V. Act, is not a complaint under Section 2(d) of the Cr.P.C. Consequently, the procedure set out in Section 190(1)(a) & 200 to 204, Cr.P.C as regards cases instituted on a complaint has no application to a proceeding under the D.V Act. The Magistrate cannot, therefore, treat an application under the D.V Act as though it is a complaint case under the Cr.P.C.

iI.An application under Section 12 of the Act shall be as set out in Form II of the D.V Rules, 2006, or as nearly as possible thereto. In case interim ex-parte orders are sought for by aggrieved person under Section 23(2) of the Act, an affidavit, as contemplated under Form III, shall be sworn to. III. The Magistrate shall not issue a summon under Section 61, Cr.P.C to a respondent(s) in a proceeding under Chapter IV of the D.V Act. Instead, the Magistrate shall issue a notice for appearance which shall be as set out in Form VII appended to the D.V Rules, 2006. Service of such notice shall be in the manner prescribed under Section 13 of the Act and Rule 12 (2) of the D.V Rules, and shall be accompanied by a copy of the petition and affidavit, if any.

iV. Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented Signature Not Verified through a counsel. Form VII of the D.V Rules, 2006, makes it Signed by: SOURABH YADAV Signing time: 19/04/2023 11:19:45 AM

clear that the parties can appear before the Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and other third parties to the domestic relationship shall be insisted only upon compelling reasons being shown. (See Siladitya Basak v State of West Bengal (2009 SCC Online Cal 1903).

V. If the respondent(s) does not appear either in person or through a counsel in answer to a notice under Section 13, the Magistrate may proceed to determine the application ex- parte. VI. It is not mandatory for the Magistrate to issue notices to all parties arrayed as respondents in an application under Section 12 of the Act. As pointed out by this Court in Vijaya Baskar (cited supra), there should be some application of mind on the part of the Magistrate in deciding the respondents upon whom notices should be issued. In all cases involving relatives and other third parties to the matrimonial relationship, the Magistrate must set out reasons that have impelled them to issue notice to such parties. To a large extent, this would curtail the pernicious practice of roping in all and sundry into the proceedings before the Magistrate.

vII. As there is no issuance of process as contemplated under Section 204, Cr.P.C in a proceeding under the D.V Act, the principle laid down in Adalat Prasad v Rooplal Jindal (2004 7 SCC 338) that a process, under Section 204, Cr.P.C, once issued cannot be reviewed or recalled, will not apply to a proceeding under the D.V Act. Consequently, it would be open to an aggrieved respondent(s) to approach the Magistrate and raise the issue of maintainability and other preliminary issues. Issues Dr.P.Pathmanathan vs Tmt.V.Monica like the existence of a shared household/domestic relationship etc., which form the jurisdictional basis for entertaining an application under Section 12, can be determined as a preliminary issue, in appropriate cases. Any person aggrieved by such an order may also take recourse to an appeal under Section 29 of the D.V Act for effective redress (See V.K Vijayalekshmi Amma v Bindu. V, (2010) 87 AIC 367). This would stem the deluge of petitions challenging the maintainability of an application under Section 12 of the D.V Act, at the threshold before this Court under Article 227 of the Constitution."

5. After hearing learned counsel for the applicant and taking into consideration the provision of DV Act, and the law laid down in the case of

Dr.P.Pathmanathan (supra), the order passed by the Magistrate regarding issuance of non-bailable warrant against the applicants is set aside. Learned counsel for the applicants submits that the applicants shall be presented through counsel on the next date i.e. 20.04.2023.

6. With the aforesaid, the present application stands allowed and disposed Signature Not Verified Signed by: SOURABH YADAV Signing time: 19/04/2023 11:19:45 AM

off.

(VIJAY KUMAR SHUKLA) JUDGE Sourabh

Signature Not Verified Signed by: SOURABH YADAV Signing time: 19/04/2023 11:19:45 AM