# Manoj Kumar Yadav v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2020) 12 ILRA 158
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-09
- **Case number:** Application U/S 482/378/407 No. 2384 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-yadav-v-state-of-u-p-ors-opp-parties-45450
- **Pages:** 6

## Headnote

Criminal Law - Protection of Women From
Domestic Violence Act, 2005 - Section 19-
Section 12(1) - Report of Protection Officer-
is not mandatory- The trial court is under
obligation to consider the report of the
Protection Officer or the Service Provider
while considering the application under
Section 19 of Protection of Women From
Domestic Violence Act, 2005, if the same is
available on record. In case there is no report
available on record then the Magistrate is not
under any obligation to call for the same
before passing any orders on an application
under Section 19 of Protection of Women
From Domestic Violence Act, 2005. Section
12(1) does not mandate that an application
seeking relief under the Act be accompanied
with
the
Domestic
Incident
Report
(hereinafter referred to as ''DIR') or even
that it should be moved by a protection
officer. Even Rule 6 which stipulates the form
and manner of making application to the
Magistrate
does
not
require
that
the
Domestic Incident Report must accompany
an application for relief made under Section
12 of the Act. It is only the proviso to Section
12 of the Protection of Women from
Domestic Violence Act, 2005, which mandate
that the Magistrate shall consider the
Domestic Incident Report received by him
from the Protection Officer or the Service
Provider. No obligation to call for Domestic
Incident Report (DIR) has been imposed
upon the Magistrate.

The trial court is under obligation to consider
the report of the Protection Officer only if the
same is on record and it is not mandatory to file
the same either with the application u/s 19 or
for the Magistrate to call for it.

Protection of Women From Domestic
Violence Act, 2005 - Section 12- Nonconsideration of the report as provided
under Section 12 of the Domestic Violence
Act by the Protection Officer/Service
Provider - No such objection was raised
before the trial court and therefore it is
not open for the applicant to raise it for
the
first
time
before
this
Court
in
proceedings under Section 482 Cr.P.C.,
unless he can satisfactorily demonstrate
that he was precluded from raising the
said issue before the trial court.

Where no objection is raised before the trial
court about non-consideration of the report of
the Protection Officer, then no such objection
can be taken at this stage.

Criminal Law - Protection of Women From
Domestic Violence Act, 2005 - Section 23-
Ex parte orders -No separate application is
required to be filed for exercise of powers
under Section 23 of the Act. The magistrate
has to act on the application filed under
Section 12 of the Act and in cases he is
satisfied that the application discloses that
the respondent is committing or has
committed an act of domestic violence or
there is likelihood that the respondent may
commit an act of domestic violence, he
may
grant
an
ex-parte
order.
12 All. Manoj Kumar Yadav Vs. State of U.P. & Ors.
159
No illegality in passing ex- parte orders where
the Magistrate is satisfied that the application
discloses the commission of an act of domestic
violence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 125, Protection
of Women From Domestic Violence Act,
2005 - Section 19- The order under
Section 125 Cr.P.C. and residence order
U/S 19 of the Domestic violence Act
operate in two different spheres, and
grant of maintenance U/S 125 Cr.P.C.
cannot limit the grant of relief U/S 19 D.V.
Act which provide for residence for the
aggrieved person by invoking provision of
Section 12(2) of D.V. Act. While passing
an order under Section 19 of D.V. Act, the
Magistrate would grant relief envisaged in
Sub-Clause (a) to (f) which clearly do not
provide for payment of compensation or
damages, and therefore the impugned
order passed U/s 19 of the Act providing
for residency of the aggrieved person
cannot be said to be violation of Section
12(2) of the Act.

Grant of Maintenance u/s 125 of the Cr.Pc
cannot limit the grant of relief u/s 19 of the Act
as bot

## Text

158 INDIAN LAW REPORTS ALLAHABAD SERIES
versus Shiv Saran Upadhaya) is set aside
and the order dated 10/03/2014 passed by
Special
Judicial
Magistrate,
C.B.I.,
Lucknow in case No.2 of 2014 (C.B.I. Vs.
Shiv Sharan Upadhyay) is upheld.

29. The petition is partly allowed.
----------
(2020)12ILR A158
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.11.2020

BEFORE

THE HON'BLE ALOK MATHUR, J.

Application U/S 482/378/407 No. 2384 of 2020

Manoj Kumar Yadav ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri P.K. Mishra

Counsel for the Opp. Parties:
G.A.

Criminal Law - Protection of Women From
Domestic Violence Act, 2005 - Section 19-
Section 12(1) - Report of Protection Officer-
is not mandatory- The trial court is under
obligation to consider the report of the
Protection Officer or the Service Provider
while considering the application under
Section 19 of Protection of Women From
Domestic Violence Act, 2005, if the same is
available on record. In case there is no report
available on record then the Magistrate is not
under any obligation to call for the same
before passing any orders on an application
under Section 19 of Protection of Women
From Domestic Violence Act, 2005. Section
12(1) does not mandate that an application
seeking relief under the Act be accompanied
with
the
Domestic
Incident
Report
(hereinafter referred to as ''DIR') or even
that it should be moved by a protection
officer. Even Rule 6 which stipulates the form
and manner of making application to the
Magistrate
does
not
require
that
the
Domestic Incident Report must accompany
an application for relief made under Section
12 of the Act. It is only the proviso to Section
12 of the Protection of Women from
Domestic Violence Act, 2005, which mandate
that the Magistrate shall consider the
Domestic Incident Report received by him
from the Protection Officer or the Service
Provider. No obligation to call for Domestic
Incident Report (DIR) has been imposed
upon the Magistrate.

The trial court is under obligation to consider
the report of the Protection Officer only if the
same is on record and it is not mandatory to file
the same either with the application u/s 19 or
for the Magistrate to call for it.

Protection of Women From Domestic
Violence Act, 2005 - Section 12- Nonconsideration of the report as provided
under Section 12 of the Domestic Violence
Act by the Protection Officer/Service
Provider - No such objection was raised
before the trial court and therefore it is
not open for the applicant to raise it for
the
first
time
before
this
Court
in
proceedings under Section 482 Cr.P.C.,
unless he can satisfactorily demonstrate
that he was precluded from raising the
said issue before the trial court.

Where no objection is raised before the trial
court about non-consideration of the report of
the Protection Officer, then no such objection
can be taken at this stage.

Criminal Law - Protection of Women From
Domestic Violence Act, 2005 - Section 23-
Ex parte orders -No separate application is
required to be filed for exercise of powers
under Section 23 of the Act. The magistrate
has to act on the application filed under
Section 12 of the Act and in cases he is
satisfied that the application discloses that
the respondent is committing or has
committed an act of domestic violence or
there is likelihood that the respondent may
commit an act of domestic violence, he
may
grant
an
ex-parte
order.
12 All. Manoj Kumar Yadav Vs. State of U.P. & Ors.
159
No illegality in passing ex- parte orders where
the Magistrate is satisfied that the application
discloses the commission of an act of domestic
violence.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 125, Protection
of Women From Domestic Violence Act,
2005 - Section 19- The order under
Section 125 Cr.P.C. and residence order
U/S 19 of the Domestic violence Act
operate in two different spheres, and
grant of maintenance U/S 125 Cr.P.C.
cannot limit the grant of relief U/S 19 D.V.
Act which provide for residence for the
aggrieved person by invoking provision of
Section 12(2) of D.V. Act. While passing
an order under Section 19 of D.V. Act, the
Magistrate would grant relief envisaged in
Sub-Clause (a) to (f) which clearly do not
provide for payment of compensation or
damages, and therefore the impugned
order passed U/s 19 of the Act providing
for residency of the aggrieved person
cannot be said to be violation of Section
12(2) of the Act.

Grant of Maintenance u/s 125 of the Cr.Pc
cannot limit the grant of relief u/s 19 of the Act
as both reliefs operate in different spheres and
the relief of residence can only be provided u/s
19 of the Act as the same does not contemplate
the grant of compensation or damages.

Application
u/s
482
Cr.Pc
accordingly
rejected. (Para 11, 12, 13, 15, 20, 25, 26) (E-3)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri P.K. Mishra, learned
counsel for applicant as well as Sri
Balkeshwar Srivastava, learned A.G.A. for
State.

2. By means of instant application
under Section 482 Cr.P.C., the applicant has
assailed the order dated 28.09.2020 passed
by Judicial Magistrate, III, Faizabad in
Complaint Case No. 1720/18( Kiran Yadav
Vs. Manoj) under Section 12 of Protection
of Women From Domestic Violence Act,
2005 P.S. Mahila Thana, Faizabad.

3. It has been submitted by learned
counsel for applicant that respondent No. 2
is legally wedded wife and respondent No.
3 is his minor daughter and the applicant
and the respondent Nos. 2 were married on
06.05.2013. It has been submitted that
respondent No. 2 preferred a complaint in
the Court of Judicial Magistrate - III,
Faizabad under Section 12 of the Domestic
violence Act, 2005 wherein she stated that
applicant and respondent No. 2 were
married on 06.05.2013 and the Vidai was
performed on 07.05.2013 and the at time of
Vidai, the father of the complainant had
paid Rs. one lakh fifty one thousand and
gifted ornaments and household etc. but the
applicant was not satisfied with the dowry
and made demand for further amount of Rs.
2 lakhs.

4. In the light of the fact that the
demand of dowry was not fulfilled then
applicant started harassing the complainant.
It has also been alleged that mother-in-law
of respondent No. 2 threw hot Ghee upon
the leg of respondent No. 2 as a result of
which she sustained serious injury at that
time when she was pregnant. She gave
birth to her daughter on 20.10.2015.
Thereafter, respondent No. 2 had moved an
application under Section 125 Cr.P.C.
before the Family Court, Faizabad seeking
maintenance and has also filed a Criminal
Complaint against the applicant and his
family members before Judicial MagistrateIII,
Faizabad
under
Section
198A/323/504/506 I.P.C. and 3/4 D.P.Act.

5. Family Court by means of order
dated 30.05.2018 and 01.05.2019 directed
the applicant to pay Rs. 4,000/- per month
as interim maintenance to respondent Nos.
160 INDIAN LAW REPORTS ALLAHABAD SERIES
2 & 3. It has further been submitted that
she also filed a Criminal Revision No.
592/2019 before this Court where certain
directions have been issued by this Court
for payment of amount of maintenance to
the respondent No. 2.

6. With regard to the controversy in
the present dispute, it has been submitted
that respondent No. 2 moved an application
on 07.05.2019 under Section 19 of
Domestic
violence Act,
2005 before
Judicial Magistrate - III, Faizabad along
with a complaint under Section 12 of
Domestic violence Act, 2005 seeking
appropriate direction to the applicant to
provide for her residence. The applicant
opposed the said application and filed his
objections before the trial court and the
application under Section 12 read with
Section 19 of Domestic violence Act, 2005
was rejected by the trial court by means of
order dated 13.08.2019.

7. Against the said order, an appeal
was filed under Section 29 of the Domestic
violence Act, 2005 by the respondent No. 2
and the same was allowed by the
Additional District and Sessions Judge,
Faizabad on 08.07.2020 whereby he set
aside the order dated 13.08.2019 and
remanded the matter to be decided on
merits.

8. After remission of the said matter,
the Magistrate has passed the order dated
28.09.2020 which has been impugned in
the present application.

9. By means of the impugned order,
the Judicial Magistrate-III, Faizabad has
allowed the application of respondent No. 2
providing for her to reside with the
applicant failing which he has been
directed to pay sum of Rs. 4,000/- per
month from which she can rent suitable
accommodation
for
herself
and
her
daughter. The aforesaid order has been
assailed by the counsel for applicant by
means of present application under Section
482 Cr.P.C.

10. Learned counsel for applicant has
assailed the order mainly on three grounds.
Firstly, that the said order has been passed
without obtaining a report as prescribed
under Section 12 of the Protection of
Women from Domestic violence Act
wherein it has been provided that the
Magistrate shall take into consideration any
domestic incident report received by him
from the Protection Officer or the Service
Provider. It has been submitted that in the
instant case no report has been submitted
by Protection Officer or the Service
Provider.
Secondly,
applicant
has
contended that no application under Section
23 was moved by the respondent No. 2 and
therefore no no order could have been
passed in favour of the applicant in exercise
of power under Section 12 of the Domestic
Violence Act and thirdly, the court below
has erroneously allowed the application of
the
applicant
without
taking
into
consideration the provisions of Section
12(2) of the D.V. Act and without
considering that the applicant has already
been directed under proceeding under
Section 125 Cr.P.C. to pay an amount of
Rs. 4,000/- per month as maintenance
which he is already paying.

11. With regard to first contention
raised by learned counsel for applicant that
the impugned order has been passed
without seeking a report as prescribed
under Section 19 of Protection of Women
From Domestic Violence Act, 2005, it has
been submitted that it is mandatory for the
Magistrate to seek such report before
12 All. Manoj Kumar Yadav Vs. State of U.P. & Ors.
161
passing any order under Section 19 of
Protection of Women From Domestic
Violence Act, 2005 and in absence of said
report the impugned order is illegal and
arbitrary and beyond powers granted to the
Magistrate and deserves to be set aside.

12. It is noteworthy that Section 12(1)
does not mandate that an application
seeking
relief
under
the
Act
be
accompanied with the Domestic Incident
Report (hereinafter referred to as ''DIR') or
even that it should be moved by a
protection officer. Even Rule 6 which
stipulates the form and manner of making
application to the Magistrate does not
require that the Domestic Incident Report
must accompany an application for relief
made under Section 12 of the Act. It is only
the proviso to Section 12 of the Protection
of Women from Domestic Violence Act,
2005, which mandate that the Magistrate
shall consider the Domestic Incident Report
received by him from the Protection Officer
or the Service Provider. No obligation to
call for Domestic Incident Report (DIR)
has been imposed upon the Magistrate.
Since the petition is filed before the
Magistrate under Section12 of the Act, the
Magistrate is empowered to issue summons
to the respondents.

13. The proviso to Section 12 of
Protection of Women From Domestic
Violence Act,
2005
has
been
duly
considered and interpreted by this court as
well as several other High Courts. It has
been so interpreted as to mean that the trial
court is under obligation to consider the
report of the Protection Officer or the
Service Provider while considering the
application under Section 19 of Protection
of Women From Domestic Violence Act,
2005, if the same is available on record. In
case there is no report available on record
then the Magistrate is not under any
obligation to call for the same before
passing any orders on an application under
Section 19 of Protection of Women From
Domestic Violence Act, 2005. This aspect
of the matter has been duly considered by
the Additional District and Sessions Judge,
Court No. 11, Faizabad while deciding the
revision petition filed by respondent No. 2
where the applicant was also heard. I do not
find any infirmity with this aspect of the
matter as dealt by the trial court.

14. After remanding the proceedings
to the trial court, the impugned order dated
28.09.2020 has been passed by the Judicial
magistrate, Faizabad where after hearing
the applicant has considered the entire
factual matrix has passed the order
providing for residence and payment of Rs.
4,000/- per month as interim measure.

15. It was also submitted that before
the Judicial Magistrate, the applicant had
also filed his objections on 06.08.2009
which were duly considered by him. It has
clearly been borne out from the impugned
order dated 28.09.2020, that in the
objections preferred by the applicant he had
not raised any issue with regard to nonconsideration of the report as provided
under Section 12 of the Domestic Violence
Act by the Protection Officer/Service
Provider. No such objection was raised
before the trial court and therefore it is not
open for the applicant to raise it for the first
time before this Court in proceedings under
Section
482
Cr.P.C., unless
he
can
satisfactorily demonstrate that he was
precluded from raising the said issue before
the trial court.

16. The legal aspect of the said matter
has already been considered above and it
has been brought on record that there was
162 INDIAN LAW REPORTS ALLAHABAD SERIES
no report of the Protection Officer/Service
provider under Section 12 of the Domestic
Violence Act and therefore the same could
not have been considered by the Magistrate
while passing the impugned order.

17. A perusal of the Protection of
women from Domestic violence Act, 2005
as well as the rules of 2006 would indicate
that an aggrieved person as described in
Section 2(a) can either move an application
herself to the magistrate or may give
information to the protection officer with
regard to the commission of an act of
domestic
violence.
In
case
the
application/information is given to the
protection officer he shall make a domestic
incidents report in the manner prescribed to
the magistrate and also forward a copy
thereof to the police officer in charge of the
police station within local limits of postal
section domestic violence is alleged to have
been committed.

18. According to rule 6 of the rules of
2006 of the application by the aggrieved person
shall be in form-II or nearly as possible thereto
and in case assistance of protection officer is
sought by the aggrieved person for filing of the
application that the same is has to be in formIII.

19. The magistrate is seized of a
proceedings initiated on the basis of an
application submitted by the aggrieved
person under Section 12 of the Domestic
violence Act may pass suitable residence
orders under Section 19 of the act satisfied
that the domestic violence has taken place
and is empowered to pass any of the orders
as provided for in sub-clause (a) to (f) of
Section 19 of the Act.

20. With regard to ex parte orders,
section 23 provides that in any proceedings
before the magistrate, he may pass such
interim orders as he deems just and proper.
From a bare reading of Section 23 it is clear
that no separate application is required to
be filed for exercise of powers under
Section 23 of the Act. The magistrate has to
act on the application filed under Section
12 of the Act and in cases he is satisfied
that the application discloses that the
respondent is committing or has committed
an act of domestic violence or there is
likelihood that the respondent may commit
an act of domestic violence, he may grant
an ex-parte order.

21. While interpreting the provisions
of domestic violence act, which is an piece
of social legislation widest amplitude has to
be given in interpreting the provisions to
see that the objective of the legislation is
fulfilled, rather than limiting the exercise of
the power of the magistrate on the basis of
mere technicalities. The argument of the
counsel for the applicant is bereft of any
reason with regard to the fact that the
respondent
should
have
given
an
application under Section 23 which would
have only enabled the Magistrate tate to
exercise the powers therein. The 2nd
ground raised by the applicant is therefore
bereift of merit and is accordingly rejected.

23. With regard to the third and last
contention raised by learned counsel for
applicant that the application of respondent
No. 2 has been allowed without taking into
consideration the provisions of Section
12(2) of the Act wherein it has been
provided that "The relief sought for under
sub-section (1) may include a relief for
issuance of an order for payment of
compensation
or
damages
without
prejudice to the right of such person to
institute a suit for compensation or
damages for the injuries caused by the acts
12 All. Arun Kumar Mishra & Ors. Vs. State of U.P. & Anr.
163
of domestic violence committed by the
respondent: "

"Provided that where decree for
any amount as compensation or damages
has been passed by any court in favour of
the aggrieved person, the amount, if any,
paid or payable in pursuance of the order
made by the Magistrate under this Act
shall be set off against the amount payable
under such decree and the decree shall,
notwithstanding anything contained int eh
Code of civil Procedure, 1908 (5 of 1908),
or any other law for the time being in
force, be executable for the balance
amount, if any, left after such set off."

24. With regard to the said contention
of the applicant, it is noticed that the
application under Section 12 of the Act has
been considered and decided by the learned
Magistrate while directing the applicant to
provide residence to the respondent No. 2
failing which he has to give an amount of
Rs. 4,000/- per month as a measure of
interim relief to the respondent No. 2 so
that she can find a suitable accommodation/
residence.

25. The maintenance granted under
Section 125 Cr.P.C. is different from the
relief granted to the respondent No. 2 by
means of impugned order and therefore
Section 12(2) of the Act is not attracted in
the facts of the present case.

26. The order under Section 125
Cr.P.C. and residence order U/S 19 of the
Domestic violence Act operate in two
different spheres, and grant of maintenance
U/S 125 Cr.P.C. cannot limit the grant of
relief U/S 19 D.V. Act which provide for
residence for the aggrieved person by
invoking provision of Section 12(2) of D.V.
Act. The arguments of the petitioner is
clearly misconceived. Section 12 (2) of the
Domestic violence Act would come into
play only when the court is considering the
application for grant of payment of
compensation or damages. While passing
an order under Section 19 of D.V. Act, the
Magistrate would grant relief envisaged in
Sub-Clause (a) to (f) which clearly do not
provide for payment of compensation or
damages, and therefore the impugned order
passed U/s 19 of the Act providing for
residency of the aggrieved person cannot
be said to be violation of Section 12(2) of
the Act.

27. I do not find any infirmity with
the impugned order dated 28.09.2020. The
present application under Section 482
Cr.P.C. lacks merit and deserves no
interference by this Court, therefore, the
present application under Section 482
Cr.P.C. is dismissed.
----------
(2020)12ILR A163
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.12.2020

BEFORE

THE HON'BLE IRSHAD ALI, J.

Application U/S 482/378/407 No. 3104 of 2020

Arun Kumar Mishra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Rupendra Kumar Porwal, Samir Agrawal,
Vivek B. Rai

Counsel for the Opp. Parties:
G.A.

Criminal Law - Indian Penal Code, 1860-
Section 405,Section 409, Code of Criminal
Procedure,
1973-
Section
482-