Patna High Court
Sanjeev Kumar Gupta @ Pappu Jee vs The State Of Bihar on 2 February, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.1363 of 2019
Arising Out of PS. Case No.- Year-0 Thana- District- Darbhanga
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SANJEEV KUMAR GUPTA @ PAPPU JEE Son of Shri Rameshwar Prasad
Gupta Resident of At M. N. 212/4, Muher, Gorbi, P.S.- Morwa, District -
Singrauli, Madhya Pradesh.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Arti Kumari Wife of Shri Sanjeev Kumar Gupta @ Pappu Jee D/o Shri
Jeevachh Prasad, Presently Resident of At Mohalla - Senapath, Masraf
Bazar, P.S.- Town, District - Darbhanga.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Ms. Shama Sinha, Adv.,
Mr. Saurav Kumar Suman, Adv.,
Ms. Asmita, Adv.,
Ms. Shreya, Adv.
For the Respondent/s : Mr. Anil Kumar Singh No. 1, APP
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 02-02-2024
Heard learned Advocate for the petitioner as well as
learned APP for the State.
2. In M.R. Case No. 14 of 2017 (Misc Case No. 145 of
2017), the Sub Judge-IX, Darbhanga vide order dated 20th
November, 2017, allowed the prayer of the opposite party for
interim monetary relief and directed the petitioner to pay the said
amount month by month during the pendency of the M.R. Case
No. 14 of 2017 (Misc Case No. 145 of 2017) being an application
Patna High Court CR. REV. No.1363 of 2019 dt.02-02-2024
under Section 12 of the Protection of Women From Domestic
Violence Act.
3. The said order was challenged in an appeal by the
present petitioner and the learned Additional Sessions Judge-V,
Darbhanga, in Cr. Appeal No. 06 of 2018 affirmed the order dated
20th November, 2017 and dismissed the appeal.
4. Being aggrieved, the petitioner/husband has preferred
the instant revision.
5. The learned Advocate for the petitioner has assailed
the impugned order on the ground that the application under
Section 12 of the said Act was filed on 17 th October, 2017. Section
13 of the said Act obligates service of notice by the Magistrate to
the opposite party within a maximum period of two days or such
further reasonable time as may be allowed by the Magistrate from
the date of its receipt. The provision of Section 13 of the
Protection of Women From Domestic Violence Act runs thus:-
" 13. Service of notice
(1)A notice of the date of hearing fixed under
section 12 shall be given by the Magistrate to
the Protection Officer, who shall get it served
by such means as may be prescribed on the
respondent, and on any other person, as
directed by the Magistrate within a maximum
period of two days or such further reasonable
time as may be allowed by the Magistrate from
the date of its receipt.
Patna High Court CR. REV. No.1363 of 2019 dt.02-02-2024
(2)A declaration of service of notice made by
the Protection Officer in such form as may be
prescribed shall be the proof that such notice
was served upon the respondent and on any
other person as directed by the Magistrate
unless the contrary is proved.
6. It is contended by the learned Advocate for the
petitioner that the learned Magistrate failed to take recourse of
Section 13 within the statutory period of time. On the other hand,
he fixed the next date of hearing on 2nd November, 2017 and
thereafter on 20th November, 2017 the ex parte order of granting
maintenance was passed.
7. Next limb of submission made by the learned
Advocate for the petitioner that Sub-section (2) of Section 23 of
the Protection of Women From Domestic Violence Act states that
if the Magistrate is satisfied that an application prima facie
discloses that the respondent is committing or has committed an
act of domestic violence or there is likelihood that the respondent
may commit on act of domestic violence, he may grant an ex parte
order on the basis of the affidavit in such form as may be
prescribed, of the aggrieved person under Section 18, Section 19,
Section 20, Section 21 or, as the case may be Section 22 against
the respondent.
8. Thus, it is contended by the learned Advocate for the
petitioner that to seek a relief under Section 23 of the Protection of
Patna High Court CR. REV. No.1363 of 2019 dt.02-02-2024
Women From Domestic Violence Act relating to interim
maintenance under Section 23, a prima facie case qua mal-
treatment and existence of the instances of domestic violence was
required to be made. In the instant case neither the learned
Magistrate nor the court of appeal held that the petitioner has been
able to make out a prima facie case. In the absence of such finding
the impugned order is bad in law.
9. Having heard the learned Advocate for the petitioner
and on perusal of the entire materials on record, I like to state at
the outset that the word "prima facie case" has not been defined in
any statute. In common parlance, "prima facie case" means a case
consisting of certain facts which according to the court leads the
petitioner to go for trial or to proceed the proceeding further.
"Prima facie case" is not a magic word which is required to be
stated in the order. If from the order impugned, it is found that the
learned trial court and a court of appeal has considered the case of
the petitioner and found that there are sufficient ground to proceed
with the case further or to decide the case on trial, "prima facie
case" is said to be established.
10. In the light of the above discussion, let me consider
the impugned order dated 20th November, 2017, passed by the
Patna High Court CR. REV. No.1363 of 2019 dt.02-02-2024
learned Magistrate and the order dated 2nd August, 2019, affirmed
by the learned Additional Sessions Judge.
11. The learned Magistrate recorded in his order that
after marriage the petitioner went to her matrimonial home. In the
said marriage a sum of Rs.12,00,000/- were demanded by the
parents of the opposite party so petitioner herein. The opposite
party was subjected to physical and mental torture. In the
meantime, in the year 2011, she gave birth to a male child. At the
time of marriage of the brother of the opposite party, the petitioner
claimed Rs. 12,00,000/-. Again in 2015 the petitioner gave birth to
another child. The opposite parties took away her wearing apparels
and ornaments and thereafter she was driven away. The petitioner
inform the incident to her parents.
12. The said fact was initially inquired into and reported
by the Protection Officer under the Protection of Women From
Domestic Violence Act. The learned Magistrate considered the
report of the Protection Officer also. Therefore, due consideration
of the case of the petitioner along with the report of the Protection
Officer suggest that the learned Magistrate consider prima facie
case of the petitioner. The said order was affirmed by the appellate
court.
Patna High Court CR. REV. No.1363 of 2019 dt.02-02-2024
13. I have also perused the order dated 2nd August, 2019
and come to the finding that the order does not suffer from
illegality or material irregularity. It may be a fact that the learned
Additional Sessions Judge misdirected himself in placing reliance
on the decision of this Court reported in 2016 (2) PCCR 114 (SC)
Prakash Nagardas Dubal- Shaha Vrs. Sou. Meena Prakash
Dubal Shah & Ors.. However, such misdirection does not vitiate
the entire order.
14. Before I part with, I will be failing to discharge my
duties, if I do not record that failure on the part of the learned
Magistrate to comply with the guideline contained in Section 13 of
the said Act is a procedural error and it does not vitiate the
substantial justice.
15. In view of such circumstances, I do not find any
illegality in the order. Accordingly, the instant revision is
dismissed.
16. However, since the application under Section 12 of
the Protection of Women From Domestic Violence Act is pending
from 17th October, 2017, the learned Magistrate shall take all
endavour to conclude the hearing of the case within six months
form the date of communication of this order.
Patna High Court CR. REV. No.1363 of 2019 dt.02-02-2024
17. The above direction is peremptory and must and
strictly complied with by the learned Magistrate.
18. The petitioner shall be provided with the opportunity
of hearing while disposing of the application under Section 12 of
the Protection of Women From Domestic Violence Act.
(Bibek Chaudhuri, J)
pravinkumar/-
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