Sreedivya vs Sudheer

M. Sasidharan Nambiar, J.—This petition is filed under Article 227 of Constitution of India to quash Ext.P2 order passed by the Judicial First Class Magistrate, Kodungallur acquitting the respondent for the failure of the petitioner/complainant to appear on 14.12.2008. Case of the petitioner is that in order to appear before the Court on that day, notice should have been served on the petitioner as provided under the Act, but no notice was served on the petitioner and therefore absence of the petitioner when the case disposed was not willful and in any case, there is no question of acquittal of an accused in an application filed u/s 12 and Magistrate can pass only such orders as provided under the Act and therefore the order is to be quashed.

Learned Counsel appearing for the petitioner and learned Counsel appearing for the respondent were heard.

Section 12 of Protection of Women from Domestic Violence Act, 2005, provides an application under Sub-section (1) could be filed before the Magistrate to get reliefs provided under Chap.IV. Under Sub-section (1), an aggrieved person or a protection officer or any other person on behalf of the aggrieved person can present an application seeking one or more reliefs provided under the Act. Sub-section (3) provides that every application shall be in such form and contains such particulars as be prescribed as nearly as possible thereto. Sub-section (4) provides that Magistrate shall fix the date of hearing which shall not ordinarily be beyond three days from the date of receipt of the application. Sub-section (5) directs that Magistrate shall end eavour to dispose every application within a period of sixty days from the date of first hearing. Section 13 provides for service of notice. Under Sub-section (1) notice of date of hearing fixed u/s 12 shall be given by the Magistrate to the protection officer, who shall get it served by such means, as prescribed on the respondent and on any other person as directed by the Magistrate within a maximum period of two days.

When the petitioner was not served with the notice directing him to appear on 14.11.2008, learned Magistrate should not have dismissed the complaint for that reason and that too as respondent is acquitted. In any case, there is no question of an acquittal u/s 256 of Code of Criminal Procedure in an application u/s 12 of the Act.

Ext.P2 order is quashed. Magistrate is directed to restore Ext.Pl application (M.C. 287/2008) to file and proceed with the application in accordance with law. Petitioner and respondent were directed to appear before the Magistrate on 16.7.2009. It is made clear that no further notice need be issued by the Magistrate for the appearance.