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Judgment
A.H. Joshi,J.
Rule. Rule is made returnable forth with. Heard finaly by consent.
By this application, the applicants have challenged the order passed by learned Judicial Magistrate First Class, Amgaon, below Exh.9 in Regular Complaint Case No. 12 of 2011.
The respondents had filed an application for various reliefs u/s 12 of the Protection of Women from Domestic Violence Act, 2005.
The present applicants were summoned and upon appearance on 14th February, 2011, they filed application praying for revocation of the order passed below Exh. 1 issuing notices to them. In the said application, the applicants had raised various grounds.
The learned Judicial Magistrate First Class heard the application [Exh.9], and rejected the same.
In present petition, the order taking cognizance of case under the Domestic Violence Act, 2005, is challenged.
Though various grounds were urged, reliance is placed on following three judgments:-
[a] Bhupender Singh Mehra Vs. State NCT of Delhi & another [Cri. M.C. No. 1766 of 2010, decided on 8th Oct., 2010 by Delhi High Court]
[b] Nandkishor Damodar Vinchurkar Vs. Kavita Nandkishor Vinchurkar & another [2009 (3)Bom. C.R. (Cri.) 280], and
[c] Pawan Sadhuram Aaswani & others Vs. Sau.Kushi Pawan Aaswani & another [Criminal Application No. 2368 of 2007, decided on 2nd June, 2008 (Coram : A.P. Lavande, J.)]
Based on the citations relied upon, following point and submissions are advanced:-
Point : That, before entertaining any application u/s 12 of the Protection of Women from Domestic Violence Act, 2005, and passing any order ,what so ever, thereon, the Court is bound to call for the report of the Protection Officer as regards the domestic violence. If such report is not called and is not considered, proceeding with the application would amount to abuse of process of law.
Submissions :-
[a] Ratio of judgment of Delhi High Courtis that justice would mean avoiding a vexatious application. Therefore, after the Domestic Violence Report is called, it may reveal that no wrong was done to the woman who had made the application.
[b] Truth may surface, and if the application is false or vexatious, the relatives, who may be named as respondents vexatiously, can be saved from embarrassment and torture.
[c] Thus, the act of calling the report shall result in advancing justice.
[d] Considering the language employed in the proviso to Section 12 of the Protection of Women from Domestic Violence Act, 2005, calling and consideration of the domestic violence report is mandatory.
In order to test the submissions, this Court has considered the scheme of the Act and the Rules.
On perusal of the format devised and put into the rules, it reveals that the format has been devised keeping in view exploratory aspect and approach.
Whenever a lay person approaches either the Protection Officer or the authority directly to furnish a report, the Protection Officer has to explore and retrieve the information on various aspects included in the format and enquire or investigate into ill-treatment which may have been given to the applicant. Various other connected matters would surface and the Protection Officer would bring the reality on record.
This Court has seen in many cases that:-
[a] Certain applications are well drafted either by the applicant or the lawyer and every point and material required for adjudication is present in the application.
[b] Attribution of motives is easily not ice able in many applications than narration of factual data of exactly what acts of domestic violence are caused and by which persons.
[c] A long array of respondents is made without attributing specific acts of violence.
[d] The applications for the women, who are ill-treated and are victims, are drafted without taking due care. Rather are drafted negligently, in a reckless manner, and with apathy.
From the point of view of bringing the truth before the Court, it is considered necessary that calling of the report on domestic violence from the Protection Officer would be imperative, in the background of the lack of industry and deficiency of knowledge shown by many members of legal profession. Many times, disservice is rendered to the victims. Well drafted applications are turning a rare specie cannot be denied.
False cases, if any, can also surface after a report on domestic violence. Revelation of facts has to be essentially the fallout of calling such report. The report has to render assistance to the process of granting or rejecting the interim as well as final relief and for ensuring that justice would be done. Just ice does not necessarily mean allowing the application. It would mean even rejection, as the case may be.
Therefore, this Court considers that it would always depend on the discretion of the Judge to immediately call for the report on domestic violence, depending on the urgency and looking to the quality of legal assistance which a particular woman has received, being worthy of advancing her cause, or other wise.
Calling of such report may really be rendered unnecessary, should the complainant or applicant - woman and her lawyer focus on drafting of the application keeping in view the contents of the report on domestic violence. Such practice, if opted, would really reduce the prejudice which the women are suffering in many cases due to in adequate and substandard assistance rendered to them.
However, reading the provision as regard scaling the report of Protection Officer as a mandatory rule and equipping a respondent with a device of getting the application of a woman dismissed on the ground that Domestic Violence Report is not called would be at treatment harsher than the ailment.
Some Reports contain information filled in acryptic manner, and such reports do not do much service to the victim.
It can not be forgotten that ultimately the litigant-applicant has to prove the case.
The provision of Section 12 of the Act, though employs the word shall, the imperativeness included in the word shall cannot and should not be allowed to defeat the scheme of the Act.
In he result, this Court holds that calling of Domestic Violence Report from a Protection Officer:-
[a] would advance the cause of justice;
[b] is not a mandatory rule of law;
[c] is discretionary and not mandatory;
[d] The stage of calling the report would depend on the discretion of the Court, guided by the facts, pleadings and material as may be brought on record.
Therefore, argument that the case should not have been registered is a far stretched submission and is not tenable.
In the circumstances, Rule is discharged.