As such setting aside of
ex-parte order by the Magistrate under the
Protection of Women from Domestic Violence
Act-2005 cannot be said to be arbitrary or against
the basic principles of judicial procedure,
particularly when sub- Section (2) of sub-Section
28 of the Act, provides that nothing in subSection (1) shall prevent the Court from laying
down its own procedure for disposal of an
application under Section 12 or sub-Section (2)
of Section 23.
Citation;2013(1)Crimes 352(Uttarkhand)
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
CRIMINAL MISC. APPLICATION No. 833 of 2010
(Under Section 482 of Cr.P.C.)
Nirmal Jeet Kaur W/o Shri Trilok Singh R/o Ram Nivas
Versus
1. State of Uttarakhand,
Hon’ble Prafulla C. Pant, J.
Decided on ;16-8 2012
(2) By means of this petition moved under
Section 482 of Cr.P.C., the petitioner has sought
quashing of the order dated 28.05.2010 passed by
Additional Chief Judicial Magistrate II, Dehradun
in Case no. 201 of 2010, whereby said court
allowed an application 18-A moved by the
respondent no. 2 and 3, and set aside ex-parte
order dated 16.02.2010 on payment of costs of `
1,500/- to the petitioner. The petitioner has
further challenged before this Court order dated
28.08.2010 passed by the appellate Court
(Additional District Judge IV at Dehradun) in
Criminal Appeal No. 45 of 2010, whereby said
Court has afirmed the order passed by the
Additional Chief Judicial Magistrate on
28.05.2010.
(3) Brief facts of the Case are that the petitioner
Nirmal Jeet Kaur got married to the respondent
no. 2, Trilok Singh on 23.12.2005, and a son
Master Harpreet SinghWalia @ Paras born out of
the wedlock on 29.11.2007. Thereafter it appears
that relations between the parties to matrimony
got soured and the petitioner Nirmal Jeet Kaur
moved an application under Section 12 read with
Section 18, 19, 20, & 21 of Protection of Women
from Domestic Violence Act-2005. In said Case
learned Additional Chief Judicial Magistrate II
Dehradun on reciept of report of Protection
Officer relating to alleged cruelty, as an interim
measure directed the respondent no. 2 Trilok
Singh (Husband) and respondent no. 3 Niranjan
Kaur (Mother-in-law of the petitioner) not to oust
them from the house situated at Ram Nivas,
Majara Opposite Hilton School,within the limits
of Police Station Patel Nagar, Dehradun, till the
pendency of the case. Said order was an ex-parte
order. Thereafter the respondnents put up their
appearance and moved an application on 18-A for
setting aside ex-parte order dated 16.02.2010, and
hear to matter on merits, with the pleading that
the respondents had no knowledge of proceedings
till 17.02.2012. The petitioner filed objection 26-
C before trial Court against said application and
after hearing the parties, the trial Court allowed
application 18-A and set aside order dated
16.02.2010 on payment costs of ` 1,500/- to the
petitioner. Agrieved by said order the petitioner
filed Criminal Appeal, which is dismissed by
learned Additional District Judge IV, Dehradun
vide impugned order dated 28.08.2010. Hence
this petition.
(4) Learned counsel for the petitioner argued
before this court that the Magistrate erred in law
in setting aside ex-parte interim order as there
was no such power with him under the Protection
of Women from Domestic Violence Act-2005. It
is further contended that the ex-parte interim
order, passed on 16.02.2010 was in consonance
of Section 23 of the Act which empowers of the
Magistrate to pass to grant interim an ex-parte
orders.
(5) On the other hand, in reply to above, learned
respondent no.2 & 3 drew attention of this Court
to sub-Section (2), of Section 28 Protection Of
Women From Domestic Violence Act 2005,
which reads as under:
Nothing in Sub-Section (1) shall prevent the
Court from laying dwon its own procedure for
disposal of an application under Section 12 or
under Section Sub Section (23).
(6) As to the procdure of the proceeding under
Protection Of Women From Domestic Violence
Act-2005 sub-Section (1) of sub-Section (28)
provides that save as otherwise provided in the
Act of proceeding under Section 12, 18, 19, 20,
21, 22, & 23 and under Section 31 shall be
governed by the provision of Code of Criminal
Procedure 1973.
(7) The question, before Court, is that whether
in the light of expression " its own procedure for
proposal of an application", can the Magistrate
recall its order passed under Section 23 or not.
Certainly said expression does not give the
Magistrate power to pass arbitrary orders or to
pass such an order which is against the known
basic principles of judicial procedure. In the
opinion of this Court what aforsaid expression
authorities the Magistrate is that he can pass such
an order which are in consonance of the basic
principles of judicial procedure. It is pertinant the
mention here that proceeding based on an
application under Section 12, the Protection Of
Women From Domestic Violence Act-2005 are
not the proceeding of trial of an offence. Rather
such proceedings are quasi civil in nature, like
the one under Section 125 of Cr.P.C. If we look in
the Code of Civil Procedure 1908, we find that
there is provision under rule 7 of Order IX of the
Code which empwers of the Court to set aside the
order directing to proceed ex-parte. Under rule 13
of Order IX of the code trial courts have powers
to set aside the ex-parte decree on suffecient
cause being shown by the defedant. Similarily
under the Code Criminal Procedure 1973, in
respect of proceedings under Section 125 of
Cr.P.C., there is proviso to sub-Section (2) of
Section 126 which empowers the Magistrate to
recall an ex-parte order. As such setting aside of
ex-parte order by the Magistrate under the
Protection of Women from Domestic Violence
Act-2005 cannot be said to be arbitrary or against
the basic principles of judicial procedure,
particularly when sub- Section (2) of sub-Section
28 of the Act, provides that nothing in subSection (1) shall prevent the Court from laying
down its own procedure for disposal of an
application under Section 12 or sub-Section (2)
of Section 23.
(8) Therefore, in the light of the above
discussion this court is not inclined to interfere
with the impugned orders passed by the Courts
below. Accordingly, the petition under Section 7
482 Cr.P.C. is dismissed with the observation that
the petitioner shall not be evicted from
matrimonial house mentioned in order dated
16.02.2010, till the interim application moved by
the petitioner is decided on merits by the
Magistrate in pursuance of order dated
28.05.2010. It is, further observed that interim
application shall be decided in the spirit
contained in sub-Section (5) of Section 12 of the
Act, expeditiously.
(Prafulla C. Pant, J.)
16.08.2012
Anand
No comments:
Post a Comment