calling the report of Protection Officer as a mandatory

Cri. Appln. No.564/2011
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application [apl] No.564 of 2011
1. Manoj Harikisanji Changani,
aged 33 years,
occupation service,
resident of Labour Colony,
Hinganghat,
Tq. Hinganghat,
Distt. Wardha.
2. Smt. Pushpabai widow of
Harikisanji Changani,
aged 61 years,
occupation  household,
resident of Labour Colony,
Hinganghat,
Tq. Hinganghat,
Distt. Wardha.
3. Sau. Radha wife of Manoj
Changani,
aged 29 years,
occupation  Housewife,
resident of Labour Colony,
Hinganghat,
Tq. Hinganghat,
Distt. Wardha.
4. Sau. Harsha wife of Sohan
Acharya,
aged 31 years,
occupation  housewife,
resident of Labour Colony,
Hinganghat,
Tq. Hinganghat,
Distt. Wardha. …. Applicants.

VersusCri. Appln. No.564/2011
2
1. Sau. Prema Shrinivas Changani,
aged 28 years,
occupation household,
resident of near Jamindar Bada,
Amgaon,
Tah. Amgaon,
Distt. Gondia.
2. Ku. Khushbu daughter of
Shrinivas Changani,
aged about 2½ years,
represented through her
natural guardian mother
Non-applicant no.1.
3. Shrinivas son of Harikisanji
Changani,
aged 36 years,
occupation service,
resident of Labour Colony,
Hinganghat,
Tq. Hinganghat,
Distt. Wardha. …. Respondents.

*****
Mr. Anup Dhore, Adv., for the applicants.
Mr. V.K. Paliwal, Adv., for respondent nos. 1 and 2.
*****
CORAM : A.H. JOSHI,J.

Date : 11th Jan., 2012.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard
finally by consent.
2. By this application, the applicants have Cri. Appln. No.564/2011
3
challenged the order passed by learned Judicial
Magistrate First Class, Amgaon, below Exh.9 in Regular
Complaint Case No. 12 of 2011.
3. The respondents had filed an application for
various reliefs under Section 12 of the Protection of
Women from Domestic Violence Act, 2005.
4. 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.
5. The learned Judicial Magistrate First Class
heard the application [Exh.9], and rejected the same.
6. In present petition, the order taking cognizance
of case under the Domestic Violence Act, 2005, is
challenged.
7. 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 Cri. Appln. No.564/2011
4
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.)],
8. Based on the citations relied upon, following
point and submissions are advanced:-
Point : That, before entertaining any application under
Section 12 of the Protection of Women from
Domestic Violence Act, 2005, and passing any
order, whatsoever, 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 Court
is 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.Cri. Appln. No.564/2011
5
[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.
9. In order to test the submissions, this Court has
considered the scheme of the Act and the Rules.
10. 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.
11. 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 Cri. Appln. No.564/2011
6
connected matters would surface and the Protection
Officer would bring the reality on record.
12. 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
noticeable 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.
13. 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 Cri. Appln. No.564/2011
7
are turning a rare specie cannot be denied.
14. 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. Justice
does not necessarily mean allowing the application. It
would mean even rejection, as the case may be.
15. 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 otherwise.
16. 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 inadequate and substandard assistance Cri. Appln. No.564/2011
8
rendered to them.
17. However, reading the provision as regards
calling 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 a
treatment harsher than the ailment.
18. Some Reports contain information filled in a
cryptic manner, and such reports do not do much service
to the victim.
19. It cannot be forgotten that ultimately the
litigant-applicant has to prove the case.
20. 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.
21. 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;Cri. Appln. No.564/2011
9
[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.
22. Therefore, argument that the case should not
have been registered is a far stretched submission and is
not tenable.
23. In the circumstances, Rule is discharged.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s