The Allahabad High Court has recently observed that a 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 a Domestic Incident Report (DIR).
The bench of Justice Rajeev Singh referred to the recent ruling of the Supreme Court in the case of Prabha Tyagi vs Kamlesh Devi 2022 LiveLaw (SC) 474, wherein it was held that Section 12 of the DV Act 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.
In essence, the Apex Court had in Prabha Tyagi (Supra) 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.
Read more about the Apex Court's ruling here: Domestic Violence Victim Can Enforce Her Right To Reside In 'Shared Household' Even If She Has Not Actually Lived There: Supreme Court
What is a Domestic Incident Report?
Before we move ahead to understand what the court held in this case, let us first understand what does a Domestic Incident Report (DIR) mean? A Domestic Incident Report is a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person.
It may be noted that as per Section 12 of the DV Act, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person including the service provider may present an application to the Magistrate seeking one or more 58 reliefs under the D.V. Act.
Further, the proviso to Sub-Section (1) of Section 12 states that before passing any order on such an application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider
Now, it must be understood that such a report comes into the picture only when a Protection Officer or any other person on behalf of the aggrieved person including the service provider presents an application to the Magistrate.
But what happens when an aggrieved person herself approaches a magistrate u/s 12 of DV Act and does not approach the magistrate through the Protection Officer or a service provider? Now, in such a case, naturally, there wouldn't be any Domestic Incident Report (DIR) in existence.
In such a situation, can it be said that in the absence of a Domestic Incident Report, the Magistrate cannot pass any order under the D.V. Act particularly when an application is filed before the Magistrate by the aggrieved person by herself or through a legal counsel?
The Apex Court in the case of Prabha Tyagi vs Kamlesh Devi 2022 LiveLaw (SC) 474 observed that although, the expression 'shall' is used in the proviso to Section 12 of DV Act, it is restricted to only those cases where a Protection Officer files any Domestic Incident Report or, as the case may be, the service provider files such a report.
"When a Domestic Incident Report is filed by a Protection Officer or a service provider, in such a case the Magistrate has to take into consideration the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Therefore, the expression 'shall' has to be read in the context of a Domestic Incident Report received by a Magistrate from the Protection Officer or the service provider as the case may be in which case, it is mandatory for the Magistrate to consider the report. But, if no such report is received by the Magistrate then the Magistrate is naturally not to consider any such Domestic Incident Report before passing any order on the application," the Court had held.
The case before the High Court
A complaint under Section 12 of the Act, 2005 was filed on 25th January 2022 by the aggrieved person herself, on which, the court concerned called for the DIR from the Protection Officer and fixed the matter for 3rd March, 2022.
Now, on March 3, 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. Now, against that very order, the aggrieved person moved the High Court.
Allowing the plea, the High Court set aside the impugned order. The Court below was directed to proceed in the matter and conclude the same expeditiously, strictly in accordance with law and the principle laid down by the Apex Court in the case of Prabha Tyagi (supra), without giving any unnecessary adjournments to either of the parties.
Counsel for Applicant :- Rishad Murtaza,Aishwarya Mishra,Syed Ali Jafar Rizvi
Case title - Mamta And Another v. State Of U.P. Thru. Prin. Secy. Home And Others
Case Citation: 2022 LiveLaw (AB) 324