# Smt. Mamta & Anr v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 428
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-15
- **Case number:** Application U/S 482 No. 2288 of 2022
- **Bench:** Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mamta-anr-v-state-of-u-p-ors-48895
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 - Protection
of Women from Domestic Violence Act,
2005-Section 12-applicant ousted from
her matrimonial house, when she was
carrying
the pregnancy of almost 7
months-applicant made complaint to the
police but no assistance was provided to
her-applicant filed complaint case- the
court below dismissed the application
with the order for calling the report of
Protection officer i.e. Domestic Incident
Report-Apex
Court
held
that
for
proceeding in the case u/s 12 of the Act,
2005, the DIR of the Protection Officer is
not mandatory before passing any order-if
DIR has been received by the Magistrate
either from the Protection Officer or the
service
provider
then
it
becomes
obligatory on the part of the Magistrate to
take note of the said report before passing
an order on the application filed by the
aggrieved party, but if no complaint or
application
of
domestic
violence
is
received by the Magistrate from the
Protection Officer or the service provider,
the question of considering such a report
does not rise at all. (Para 1 to 10)

B. The Magistrate has jurisdiction to take
cognizance of the complaint u/s 12 of the
D.V. Act in the absence of a Domestic
Incident Report under Rule 5 when the
complaint is not filed on behalf of the
aggrieved person through a Protection
Officer
or
service
provider.
Such
a
purposeful interpretation has to be given
bearing
in mind the
fact
that the
immediate relief would have to be given
to an aggrieved person and hence the
proviso
cannot
be
interpreted
in
a
manner which would be contrary to the
object of the D.V. Act which renders
Section 12 bereft of its object and
purpose.(Para 8)

The application is allowed. (E-6)
List of Cases cited:

## Text

428 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity to adduce evidence in support
of their case, the revision was rejected at
the stage of admission.

44. The order rejecting an application
seeking temporary injunction under Section
146 of the Revenue Code having been held
to be not amenable to the remedy of a
revision under Section 210, the order
passed by the Board of Revenue rejecting
the revision at the stage of admissibility
therefore cannot be faulted.

45. The writ petition thus fails and is
accordingly dismissed.

46. Counsel for the petitioners at this
stage seeks liberty to invoke statutory
remedy of an appeal against the order
rejecting their application for temporary
injunction. In this regard, it is only required
to be observed that dismissal of the writ
petition would not preclude the petitioners
from taking recourse to any appropriate
legal remedy as they may be advised.
----------
(2022)07ILR A428
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.07.2022

BEFORE

THE HON'BLE RAJEEV SINGH, J.

Application U/S 482 No. 2288 of 2022

Smt. Mamta & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Rishad Murtaza, Aishwarya Mishra, Syed Ali
Zafar Rizvi

Counsel for the Opposite Parties:
G.A.
A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 - Protection
of Women from Domestic Violence Act,
2005-Section 12-applicant ousted from
her matrimonial house, when she was
carrying
the pregnancy of almost 7
months-applicant made complaint to the
police but no assistance was provided to
her-applicant filed complaint case- the
court below dismissed the application
with the order for calling the report of
Protection officer i.e. Domestic Incident
Report-Apex
Court
held
that
for
proceeding in the case u/s 12 of the Act,
2005, the DIR of the Protection Officer is
not mandatory before passing any order-if
DIR has been received by the Magistrate
either from the Protection Officer or the
service
provider
then
it
becomes
obligatory on the part of the Magistrate to
take note of the said report before passing
an order on the application filed by the
aggrieved party, but if no complaint or
application
of
domestic
violence
is
received by the Magistrate from the
Protection Officer or the service provider,
the question of considering such a report
does not rise at all. (Para 1 to 10)

B. The Magistrate has jurisdiction to take
cognizance of the complaint u/s 12 of the
D.V. Act in the absence of a Domestic
Incident Report under Rule 5 when the
complaint is not filed on behalf of the
aggrieved person through a Protection
Officer
or
service
provider.
Such
a
purposeful interpretation has to be given
bearing
in mind the
fact
that the
immediate relief would have to be given
to an aggrieved person and hence the
proviso
cannot
be
interpreted
in
a
manner which would be contrary to the
object of the D.V. Act which renders
Section 12 bereft of its object and
purpose.(Para 8)

The application is allowed. (E-6)
List of Cases cited:

1. Prabhad Tyagi Vs Kamlesh Devi (2022) SCC
Online SC 607
7 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
429
2. Nayankumar Vs St. of Karn. (2009) ILR Kar
4295

3. Abhiram Gogoi Vs Rashmi Rekha Gogoi
(2011) 4 Gau LR 276

4. Md. Basit Vs St. of Assam (2012) 1 Gau LR
747

5. Rahul Soorm Vs St. of H.P.(2012) SCC Online
HP 2574

6. A.Vidya Sagar Vs St. of A.P. (2014) SCC
Online Hyd 715

7. Ravi Kumar Bajpai Vs Renu Awasthi Bajpai
(2016) ILR MP 302

8. Shambhu Prasad Singh Vs Manjari (2012) 190
DLT 647

9. Rakesh Choudhary Vs Vandana Choudhary
(2019) SCC Online J& K 512

10. Vijay Maruti Gaikwad Vs Sawita Vijay
Gaikwad (2018) 1 HLR 295

11. Suraj Sharma Vs Bharti Sharma (2016) SCC
Online Chh 1825

(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard Shri Rishad Murtaza,
learned counsel for the applicants, Shri
Aniruddha Kumar Singh, learned A.G.A.
for the State and Ms. Madhulika Yadav,
learned counsel for the private respondent
nos. 2 to 5.

2. This application has been filed
seeking quashing of the order dated
03.03.2022 passed by Additional Chief
Judicial Magistrate V, Lucknow, whereby
Domestic Incident Report has been called
for. A further prayer has been sought to
direct the court concerned to proceed in
Complaint Case No. 557 of 2022 under the
Protection of Women from Domestic
Violence Act.

3. Learned counsel for the applicants
submitted that the marriage of applicant no.
1 was solemnized with respondent no. 2 as
per the Hindu Rites on 17th June, 2017 and
out of their wedlock, applicant no. 2 was
born, who is at present in the care and
custody of applicant no. 1 (mother).
Respondent nos. 3 to 5 are the mother-inlaw,
brother-in-law
and
sister-in-law
respectively. It has further been submitted
that applicant no. 1 was ousted from her
matrimonial house by respondent nos. 2 to
5 on 1st October, 2020, when she was
carrying the pregnancy of almost 7 months
of applicant no. 2. Later on, applicant no. 2
born in Fatima Hospital, Lucknow. It has
also been submitted that since the private
respondents were not taking care of the
applicants, applicant no. 1 made complaint
in local police station, but no assistance
was provided to her from the local police.
Thereafter, she preferred application under
Section 12 of the Protection of Women
from
Domestic
Violence
Act,
2005
(hereinafter referred to as the ''Act, 2005')
in the court of ACJM V, Lucknow, which
was registered as Complaint Case No. 557
of 2022. Submission of the learned counsel
for the applicants is that in place of issuing
notice on the aforesaid application, the
Presiding Officer called for the report of
Protection Officer, i.e., Domestic Incident
Report (for short ''DIR') and fixed the
matter for 3rd March, 2022. As the report
of the Protection Officer was not received,
the applicants, while relying on the
decision of this Court in the case of Manoj
Kumar yadav Vs. State of U.P. & Ors.
(Appilcation u/s 482 Cr.P.C. No. 2384 of
2020), moved application to the court
below to proceed without calling for the
DIR. However, the court below vide
impugned order dated 3rd March, 2022, in
spite of issuing notice to the respondents,
dismissed the said application with the
430 INDIAN LAW REPORTS ALLAHABAD SERIES
order for calling the report of Protection
Officer.

4. It has been submitted by the
learned counsel for the applicants that the
DIR is not mandatory for adjudicating the
matter under Section 12 of the Act, 2005. It
has further been submitted that this
controversy has already been decided by
the Hon'ble Apex Court in the case of
Prabha Tyagi Vs. Kamlesh Devi, (2022)
SCC Online SC 607. It has, thus, been
submitted that indulgence of this Court is
necessary. The impugned order dated
03.03.2022 is liable to be set aside and the
court below may be directed to proceed in
the
matter
and
conclude
the
same
expeditiously.

5. Learned A.G.A. as well as learned
counsel for the complainant vehemently
opposed the prayer of the applicants and
submitted that without DIR of Protection
Officer, the correct picture of the incident
will not be clear to the court below and,
therefore, there is no illegality in the
impugned order passed by the court below
by calling for the DIR. However, they have
no objection if the court below is directed
to proceed in the matter expeditiously.

6.

Considering
the
arguments
advanced by the learned counsel for the
applicants, learned A.G.A. as well learned
counsel for the private respondents and
going through the impugned order and
other relevant documents, it is undisputed
fact that the complaint under Section 12 of
the Act, 2005 was filed on 25th January,
2022 and the court concerned called for the
DIR from the Protection Officer and fixed
the matter for 3rd March, 2022. It is also
undisputed that since the report was not
made available, another application was
moved by the applicants with the prayer to
proceed in the matter and issue notice to
the private respondents, but the court below
rejected the said applicant and called for
the DIR.

7. Hon'ble Apex Court in the case of
Prabha
Tyagi
(supra)
has
already
answered
the
issue,
whether
before
proceeding in the matter, the DIR is
mandatory or not under the provisions of
the Act, 2005 in order to invoke the
substantive provision of Sub-sections 18 to
21 and 22 of the Act, 2005. The Hon'ble
Supreme Court held that Section 12 of the
Act, 2005 does not make it mandatory for a
Magistrate to consider the DIR filed by the
Protection Officer or the Service Provider
before passing any order under the Act,
2005. It has also been clarified that even in
absence
of
DIR,
the
Magistrate
is
empowered to proceed ex parte and pass
interim as well as final order under the
provisions of Act, 2005.

8. Relevant portions of the judgment
of Prabha Tyagi (supra) are quoted
hereinbelow:

"25. The submissions of the
learned amicus curiae counsel for the
respective sides were on the following
points for consideration which were raised
vide order dated 11th February, 2022:

"(i) Whether the consideration of
Domestic Incident Report is mandatory
before initiating the proceedings under
D.V. Act, in order to invoke substantive
provisions of Sections 18 to 20 and 22 of
the said Act?

(ii) Whether it is mandatory for
the aggrieved person to reside with those
persons against whom the allegations have
been levelled at the point of commission of
violence?
7 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
431

(iii) Whether there should be a
subsisting domestic relationship between
the aggrieved person and the person against
whom the relief is claimed?"

Legal Framework:

26. For an easy and immediate
reference, the following provisions of the
Protection of Women from D.V. Act are
extracted as under:

"2. Definitions.--In this Act,
unless the context otherwise requires,--

(a) ''aggrieved person' means any
woman who is, or has been, in a domestic
relationship with the respondent and who
alleges to have been subjected to any act of
domestic violence by the respondent;

x x x

(e) ''domestic incident report'
means a report made in the prescribed form
on receipt of a complaint of domestic
violence from an aggrieved person;

(f) ''domestic relationship' means
a relationship between two persons who
live or have, at any point of time, lived
together in a shared household, when they
are related by consanguinity, marriage, or
through a relationship in the nature of
marriage, adoption or are family members
living together as a joint family;

x x x

(s) ''shared household' means a
household where the person aggrieved lives
or at any stage has lived in a domestic
relationship either singly or along with the
respondent and includes such a house hold
whether owned or tenanted either jointly by
the aggrieved person and the respondent, or
owned or tenanted by either of them in
respect of which either the aggrieved
person or the respondent or both jointly or
singly have any right, title, interest or
equity and includes such a household
which may belong to the joint family of
which the respondent is a member,
irrespective of whether the respondent or
the aggrieved person has any right, title or
interest in the shared household."

"3.
Definition
of
domestic
violence.--For the purposes of this Act, any
act, omission or commission or conduct of
the respondent shall constitute domestic
violence in case it--

(a) harms or injures or endangers
the health, safety, life, limb or well-being,
whether mental or physical, of the
aggrieved person or tends to do so and
includes causing physical abuse, sexual
abuse, verbal and emotional abuse and
economic abuse; or

(b) harasses, harms, injures or
endangers the aggrieved person with a view
to coerce her or any other person related to
her to meet any unlawful demand for any
dowry or other property or valuable
security; or

(c) has the effect of threatening
the aggrieved person or any person related
to her by any conduct mentioned in clause
(a) or clause (b); or

(d) otherwise injures or causes
harm, whether physical or mental, to the
aggrieved person. Explanation I.--For the
purposes of this section,--

(i) ''physical abuse' means any act
or conduct which is of such a nature as to
432 INDIAN LAW REPORTS ALLAHABAD SERIES
cause bodily pain, harm, or danger to life,
limb, or health or impair the health or
development of the aggrieved person and
includes assault, criminal intimidation and
criminal force;

(ii) ''sexual abuse' includes any
conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates
the dignity of woman;

(iii) ''verbal and emotional abuse'
includes-

(a) insults, ridicule, humiliation,
name calling and insults or ridicule
specially with regard to not having a child
or a male child; and

(b) repeated threats to cause
physical pain to any person in whom the
aggrieved person is interested;

(iv) ''economic abuse' includes--

(a) deprivation of all or any
economic or financial resources to which
the aggrieved person is entitled under any
law or custom whether payable under an
order of a court or otherwise or which the
aggrieved person requires out of necessity
including, but not limited to, house hold
necessities for the aggrieved person and her
children, if any, Stridhana, property, jointly
or separately owned by the aggrieved
person, payment of rental related to the
shared house hold and maintenance;

(b) disposal of household effects,
any alienation of assets whether movable or
immovable, valuables, shares, securities,
bonds and the like or other property in
which the aggrieved person has an interest
or is entitled to use by virtue of the
domestic relationship or which may be
reasonably required by the aggrieved
person or her children or her Stridhana or
any other property jointly or separately
held by the aggrieved person; and

(c) prohibition or restriction to
continued access to resources or facilities
which the aggrieved person is entitled to
use or enjoy by virtue of the domestic
relationship including access to the shared
household.

Explanation II.--For the purpose
of determining whether any act, omission,
commission or conduct of the respondent
constitutes ''domestic violence' under this
section, the overall facts and circumstances
of
the
case
shall
be
taken
into
consideration."

x x x

"12. Application to Magistrate.--
(1) An aggrieved person or a Protection
Officer or any other person on behalf of the
aggrieved
person
may
present
an
application to the Magistrate seeking one or
more reliefs under this Act:

Provided that before passing
any order on such application, the
Magistrate shall take into consideration
any Domestic Incident Report received
by him from the Protection Officer or the
service provider.

(2) 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
of domestic violence committed by the
respondent:
7 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
433

Provided that where a 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 in the
Civil Procedure Code, 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.

(3) Every application under SubSection (1) shall be in such form and
contain such particulars as may be
prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the
first date of hearing, which shall not
ordinarily be beyond three days from the
date of receipt of the application by the
court.

(5)
The
Magistrate
shall
Endeavour to dispose of every application
made under Sub-Section (1) within a period
of sixty days from the date of its first
hearing."

x x x

"17. Right to reside in a shared
household.-- (1) Notwithstanding anything
contained in any other law for the time
being in force, every woman in a domestic
relationship shall have the right to reside in
the shared household, whether or not she
has any right, title or beneficial interest in
the same.

(2) The aggrieved person shall
not be evicted or excluded from the shared
household or any part of it by the
respondent save in accordance with the
procedure established by law."

x x x

"23. Power to grant interim
and
ex
parte
orders.--(1)
In
any
proceeding before him under this Act, the
Magistrate may pass such interim order as
he deems just and proper.

(2) 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
that there is a likelihood that the respondent
may commit an 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
section18, section 19, section 20, section 21
or, as the case may be, section 22 against
the respondent."

59. We are, therefore, of the view
that the High Court was not right in holding
that the application filed by the appellant
herein was not accompanied by a Domestic
Incident Report and therefore under the
proviso to Sub-Section (1) of Section 12 of
the D.V. Act, the Magistrate had no
authority to issue orders and directions in
favour of the appellant.

(i) Following are the judgments
where the High Courts have held that the
Domestic Incident Report is not a sine qua
non for entertaining or deciding the
application under Section 12 of the D.V.
Act by the learned Magistrate.

a) In Nayanakumar v. State of
Karnataka, [ILR 2009 Kar 4295], the High
Court of Karnataka (Kalaburagi Bench)
while dealing with Section 12 of the D.V.
434 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, held that in case a Domestic Incident
Report is received by the Magistrate either
from the Protection Officer or from the
Service
Provider,
then
it
becomes
obligatory on the part of the Magistrate to
take note of the said Domestic Incident
Report before passing an order on the
application filed by the aggrieved party. It
was further clarified that the scheme of the
D.V. Act makes it clear that it is left to the
choice of the aggrieved person to go before
the service provider or the Protection
Officer or to approach the Magistrate under
Section 12 of the D.V. Act.

b) In Abhiram Gogoi v. Rashmi
Rekha Gogoi, [(2011) 4 Gau LR 276], the
Gauhati High Court held that Section
9(1)(b) of the D.V. Act makes it clear that
it is the duty of the Protection Officer to
make a Domestic Incident Report to the
Magistrate upon receipt of a complaint of
domestic violence and forward copies
thereof to the police officer-in-charge of
the police station within the local limits of
whose jurisdiction domestic violence is
alleged to have been committed and to the
service providers in that area.

c) In the case of Md. Basit v.
State of Assam, [(2012) 1 Gau LR 747], the
Gauhati High Court differed with the view
taken
by
the
Madhya
Pradesh
and
Jharkhand High Courts and held that
Section 12 only contemplates as to who can
file a complaint under Section 12 of the
D.V. Act, what relief may be sought for,
what the contents of the complaint must be
and how the complaint ought to be
examined. That if the complaint conforms
to the said pre-conditions, the same may be
taken cognizance of. The High Court noted
that an application under Section 12(1) of
the D.V. Act may be filed either by an
aggrieved person herself, or by a Protection
Officer. The Court went on to hold that the
provision does not require a Magistrate to
specifically call for a Domestic Incident
Report. That it would only be mandatory to
consider such report, if the same had been
filed by the Protection Officer before the
Magistrate. The Gauhati High Court
differed with the view taken by the Madhya
Pradesh and Jharkhand High Courts, to the
extent that the latter Courts observed that
the Magistrate would not be obligated to
consider the Domestic Incident Report even
if the same was filed by the Protection
Officer.

d) Delving on the same issue, the
High Court of Himachal Pradesh in Rahul
Soorma v. State of Himachal Pradesh,
[2012 SCC OnLine HP 2574], held that the
purpose of the D.V. Act is to give
immediate relief to the aggrieved person;
therefore, it was wrong to suggest that the
Magistrate has no jurisdiction to take
cognizance of the application under Section
12 of the D.V. Act before the receipt of a
Domestic Incident Report by the Protection
Officer or the service provider.

e) Further, the High Court of
Andhra Pradesh in A. Vidya Sagar v.State
of Andhra Pradesh, [2014 SCC OnLine
Hyd 715], rejected the contention of the
petitioner therein that a domestic violence
case can be instituted and taken cognizance
of on the basis of the Domestic Incident
Report only and not otherwise.

f) In its judgment in the case of
Ravi Kumar Bajpai v. Renu Awasthi
Bajpai, [ILR 2016 MP 302], the High
Court of Madhya Pradesh speaking through
J.K. Maheshwari, J., while discussing on
the legislative intent of the D.V. Act, held
that if the legislative intent was to call for a
report from the Protection Officer as a
7 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
435
precondition by the Magistrate to act upon
a complaint of aggrieved person, then it
would
have
expressed
that
intention
emphasizing the words in the main section.
The
High
Court
relied
on
various
judgments pertaining to the interpretation
of a provision and proviso thereof.

g) The Division Bench of the
High Court of Delhi in Shambhu Prasad
Singh v. Manjari, [(2012) 190 DLT 647]
speaking through Ravindra Bhat, J. dealt
with the conflicting views of the two Single
Judges
on
the
question
whether
a
Magistrate can act straightaway on the
complaint made by an aggrieved person
under the D.V. Act. It was held that Section
12(1) of the D.V. Act does not mandate
that an application seeking relief under the
said D.V. Act must be accompanied with a
Domestic Incident Report or even that it
should be moved by a Protection Officer.
So also, Rule 6 which stipulates the form
and manner of making an application to a
Magistrate does not require that the
Domestic Incident Report must accompany
an application for relief under Section 12.

It was further held that an
obligation to submit a Domestic Incident
Report is imposed only on the Protection
Officers under Section 9 of the D.V. Act
and upon the service providers under
Section 10 of the D.V. Act and the learned
Magistrate ''shall' take into consideration,
the Domestic Incident Report if it is filed
and not otherwise.

h) In Rakesh Choudhary v.
Vandana Choudhary, [2019 SCC OnLine
J&K 512], the High Court of Jammu and
Kashmir rejected the argument of the
petitioner therein that the report of the
Protection Officer is sine qua non for
issuing process in a petition under Section
12 of the D.V. Act. The Court held that the
proviso to Section 12(1) of the D.V. Act
only stipulates that the learned Magistrate
shall take into consideration the Domestic
Incident Report filed by the Protection
Officer or the Service Provider, but it does
not stipulate that a report ''shall be called
for' before any relief could be granted.

i) Further, the High Court of
Bombay at Aurangabad Bench, while
dealing with a criminal writ petition in the
case of Vijay Maruti Gaikwad v. Savita
Vijay Gaikward, [(2018) 1 HLR 295],
observed that if the matter is before the
Court and the wife preferred not to
approach the Protection Officer, the Court
is not bound to call the report of Protection
Officer.

j) Lastly, in the case of Suraj
Sharma v. Bharti Sharma, [2016 SCC
OnLine Chh 1825], the High Court of
Chhattisgarh while expressing its view on
Section 12 of the D.V. Act also held that
the Domestic Incident Report shall not be
conclusive material for making any order.

61. On an analysis of the
aforesaid judgments from various High
Courts, we find that the High Courts of
Andhra Pradesh, Bombay, Delhi, Gauhati,
Himachal Pradesh, Jammu & Kashmir,
Karnataka, and Madhya Pradesh, are right
in holding that if Domestic Incident Report
has been received by the Magistrate either
from the Protection Officer or the service
provider then it becomes obligatory on the
part of the Magistrate to take note of the
said report before passing an order on the
application filed by the aggrieved party, but
if no complaint or application of domestic
violence is received by the Magistrate from
the Protection Officer or the service
provider, the question of considering such a
436 INDIAN LAW REPORTS ALLAHABAD SERIES
report does not arise at all. As already
discussed, the D.V. Act does not make it
mandatory for an aggrieved person to make
an application before a Magistrate only
through the Protection Officer or a service
provider. An aggrieved person can directly
make an application to the jurisdictional
Magistrate by herself or by engaging the
services of an Advocate. In such a case, the
filing of a Domestic Incident Report by a
Protection Officer or service provider does
not arise. In such circumstances, it cannot
be held that the Magistrate is not
empowered to make any order interim or
final, under the provisions of the D.V. Act,
granting reliefs to the aggrieved persons.
The Magistrate can take cognizance of the
complaint or application filed by the
aggrieved person and issue notice to the
respondent under Section 12 of the D.V.
Act even in the absence of Domestic
Incident Report under Rule 5. Thus, the
Magistrate
has
jurisdiction
to
take
cognizance of the complaint under Section
12 of the D.V. Act in the absence of a
Domestic Incident Report under Rule 5
when the complaint is not filed on behalf of
the aggrieved person through a Protection
Officer or service provider. Such a
purposeful interpretation has to be given
bearing in mind the fact that the immediate
relief would have to be given to an
aggrieved person and hence the proviso
cannot be interpreted in a manner which
would be contrary to the object of the D.V.
Act which renders Section 12 bereft of its
object and purpose.

64. In view of the above
discussion, the three questions raised in this
appeal are answered as under:

"(i) Whether the consideration of
Domestic Incidence Report is mandatory
before initiating the proceedings under
Domestic Violence Act, 2005 in order to
invoke substantive provisions of Sections
18 to 20 and 22 of the said Act?"

65. It is held that Section 12 does
not make it mandatory for a Magistrate to
consider a Domestic Incident Report filed
by a Protection Officer or service provider
before passing any order under the D.V.
Act. It is clarified that even in the absence
of a Domestic Incident Report, a Magistrate
is empowered to pass both ex parte or
interim as well as a final order under the
provisions of the D.V. Act.

"(ii) Whether it is mandatory for
the aggrieved person to reside with those
persons against whom the allegations have
been levied at the point of commission of
violence?"

9. As the controversy in question has
already been decided by the Hon'ble Apex
Court by holding that for proceeding in the
case under Section 12 of the Act, 2005, the
DIR of the Protection Office is not
mandatory before passing any order.

In view of the above facts and
circumstances as well as the law laid down
by the Hon'ble Apex Court in the case of
Prabha Tyagi (supra), it is evident that the
court below has committed error in
rejecting the application for expedite
disposal of the case by the impugned order
and calling for the DIR, in place of
proceeding in the matter.

10. The impugned order dated
03.03.2022 is hereby set aside. The
application stands allowed.

11. The court below is directed to
proceed in the matter and conclude the
same expeditiously, strictly in accordance
7 All. Vivekanand Dobriyal Vs. State of U.P.
437
with law and the principle laid down by the
Hon'ble Apex Court in the case of Prabha
Tyagi
(supra),
without
giving
any
unnecessary adjournments to either of the
parties.
----------
(2022)07ILR A437
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.06.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Application U/S 482 No. 3899 of 2022

Vivekanand Dobriyal ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Arun Sinha, Sri Ram Chandra Singh, Sri
Siddhartha Sinha, Sri Umang Agarwal

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 82 -
Indian Penal Code, 1860- Sections 120-B,
384, 389, 405, 420,467, 468, 465, 471 &
504 - Prevention of Corruption Act, 1988Section
7/13(1)(b)-challenge
to-Nonbailable warrant-In the present case, the
process issued or even the publication
does not indicate any specified time and
place-Furthermore, none of the sections
as mentioned in Section 82(4) are the part
of the FIR of which the applicant is
allegedly
accused
of,
as
such,
the
applicant , prima facie cannot be declared
as proclaimed offender in exercise of
powers u/s 82(4) of the Cr.P.C.-Thus, on
that count also, the apprehension of the
applicant is not justified.(Para 1 to 22)
B. On a plain reading, the intent and
purpose of section 82 is to secure the
presence of the accused who does not
participate in the proceedings despite
issuance of warrants. To exercise the said
powers, the court is to form 'reasons to
believe' based upon material before him
that any person against whom a warrant
has been issued has absconded or is
concealing himself so that such warrant
cannot
be
executed.
The
second
requirement is that the court shall issue a
written
proclamation
requiring
the
accused to appear at a specified place and
at a specified time which could not be less
than 30 days from the date of publication
of such proclamation. In the absence of
the court forming the 'reasons to believe'
the power clearly cannot be exercised and
in terms of the powers so conferred, it is
also
essential
that
the
written
proclamation should specify the place and
the time for appearance which could not
be less than 30 days from the date of
application.(Para 13, 14)

The application is allowed. (E-6)
List of Cases cited:

1. Lavesh Vs St. (NCT of Delhi) (2012) LawSuit
SC 562: (2012) 8 SCC 730

2. St. thru CBI Vs Dawood Ibrahim Kaksar &
ors. (2000) 10 SCC 438

3. Kunwar Mahendra Pratap Singh @ Chandan
Singh, Appl. u/s 482 No. 2261 of 2021)

4. Pankaj Singh @ Ajay Singh Vs St. of U.P. &
ors., Appl. u/s 482 No. 175 of 2022

5. Kalbe Raza Abidi Vs St. of U.P.,Appl. u/s 482
No. 102 of 2022

6. Vinod Kumar Singh @ Vinod Singh Vs St. of
U.P., Appl. u/s 482 No. 5195 of 2021

7. N. Nagendra Rao & Co. Vs St. of A.P.(1994) 6
SCC 205

8. Dr. Pratap Singh & anr. Vs ED (1985) 3 SCC 72

9. Dr. Jai Shanker Vs St. of H.P. (1973) 3 SCC 83

(Delivered by Hon'ble Pankaj Bhatia, J.)