SHAMBHU PRASAD SINGH Vs. MANJARI

JUDGEMENT

(1.) This judgment answers a reference to this Division Bench, requiring resolution of a conflict between the decision of two learned Single Judges of this Court on the question whether a magistrate can act straightaway on a complaint made by an aggrieved person, under the Protection of Woman from Domestic Violence Act, 2005 (hereafter "the Act"). A learned Single Judge had considered and ruled upon the scope and effect of different provisions in an earlier decision of this court. Another learned Single Judge by order dated 03.05.2012 referred the present matter to the Chief Justice for being placed before a Division Bench for consideration. In these circumstances, the reference was assigned to this Court for its opinion. The precise question which this Court is called upon to answer is whether calling for and considering the report of the Protection Officer under the Act is mandatory before the Court can issue notice to a Respondent in an application under Section 12 of the Act.

(2.) The issue arose in this case, before the learned single judge in the context of a challenge from the order dated 31st May, 2011 passed by the learned Metropolitan Magistrate in complaint case No. 934/2003 titled as Manjari Vs. Shambhu Prasad Singh. The magistrate (hereafter called "Trial Court") issued notice to the Petitioner on a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short "D.V. Act") without calling for a report from the Protection Officer; the Petitioner s challenge to that order was rejected by a the Learned Additional Sessions Judge on 4 th August, 2011 dismissing the appeal filed by the Petitioner. No discussion of the factual matrix of the case is required since it is only the question of law which has to be decided by this court.

(3.) Learned counsel for the petitioner contends that on an application u/s 12 of the D.V. Act, no notice can be issued to the respondent without calling for and considering the domestic incident report (DIR) from the Protection Officer. It is contended that the ruling in Bhupender Singh Mehra & Anr. Vs. State of NCT of Delhi & Anr, 2010 4 JCC 2939 has spelt out that such a procedure bind the magistrate. The relevant portion of the said judgment is reproduced hereunder: