Crpc 202 amendment act 2005 and its application in pwdva
kankaghosh
(Querist) 03 June 2015
This query is : Resolved
Dear Experts,
I am eager to know the impact of postponing issue processing where respondents/defenadants reside outside where the suit is originated in PWDVA. There was an amendment in CrPC 202 section in 2005 Crpc Amendment Act. The CJM taken the cognizance basis DIR and application of wife without enquiry whether defendants reside in the territory or not. Fact is that defendants do not reside in the said place. Save or otherwise as contemplated in PWDVA Act all reliefs are governed by Crpc-1973. How much is the process tenable with aforesaid observation without any enquiry in eye of law. Further to say that complainant was not examined before issuance of process by Court.
Thanks
Kanka
DEFENSE ADVOCATE.-firmaction@g
(Expert) 03 June 2015
There are conflicting judgments on this provision.
However if the stakes are high than you if you are opponent than must go for revision.
Hear again whether it is interlocutory order or not. Take help of landmark MADHU LIMYE judgment of APEX COURT for drafting the revision to come out of interlocutory trap.
kankaghosh
(Querist) 03 June 2015
Sir,
Thanks. We are challenging the final order. There are several material irregularity. At first instance the court order reads like. Respondents do not stay in the said shared household and stay outside and work outside the district but in same state but not within the local jurisdiction of the Magistrate.
Please see below of the case record:-
Date:- xxx
A complaint is filed by the protection officer for the complainant 'X' along with the DIR Report in Form 1 of the Protection Officer and application to the Magistrate under section 12 of the Domestic Violence Act 2005 along with Xerox copy of relevant documents against the respondents a,b,c U/S-12 of DV Act 2005.
Register the complaint as CR Case.
Cognizance is taken. Issue notice upon the respondents Requisite at once. Let the case be fixed for hearing on 'd' date. Protection Officer is directed to get the notice signed by the PO at once and ensure service return within 2 days as provided in Statue.
Let the case record be transferred to JM Court for disposal.
After 2 days wife prefers petition of interim order and magistrate passes without affecting service to any of the respondents.
Even Final Order passed without any notice to respondents. This is story.
The same is challenged now.
Fortunately I found few judgements on Crpc 202 vide reportable judjements Udai Shankar Awasthi Vs State of UP & Anr criminal appeal no 61 of 2013, where specifically guidelines on criminal case, continuing offence, second complaint on same facts maintainability vide para 26 stated different facts.
How much is that applicable in line with above Order.
Thanks
Kanka
DEFENSE ADVOCATE.-firmaction@g
(Expert) 03 June 2015
Yes Uday Shankar is imp citation , it has also given details of earlier SC judgments in 202 matter.
You can go in revision against cognizance of complaint and twin issues of CRPC 202 and also it will be lack of jurisdiction since incidents did not occur within the jurisdiction of the lower court.
However in most of the cases sessions court take the objection that it is interlocutory order and thereafter second chance u/s 482 to HC will not be allowed.
So frame the revision properly.
kankaghosh
(Querist) 03 June 2015
Thanks Again Sir.
We are not challenging this interlocutory order. We are challenging the Final order which was heard ex-parte.
This challenge is in form of appeal in sessions.
I just want to know from you, that within the PWDVA Act, Can Magistrate take such cognizance without examining complainant and only basis DIR and application filed by complainant. Now that the Application filed, can it be treated as complaint? Because 202 crpc deals with complaint. I am novish in this line but trying to understand the plea of defense. Now whether session court should deal with procedural defect along with other material point- that is still a concern. But is there any chance of rejection from any angle of my plea?
Yes respondents/defendants stay outside the suit. One in different state and another in another district but within the same state.
Now under PWDVA 2005, applicant prefers to file suit of DV where she resides mentioning cause of action in the same area and magistrates pass such orders in favor of applicants. This is natural scenario.
Can you please share any citation of Continuing offence. Case is that petitioner herself admitted that she is staying with her parents for last 2 years 9 months. So admittedly No Domestic Violence in between. But financial abuse -will that be considered in line with section 125(4) and 125(5) in my defense.
Kindly advise.
Thanks
Suman
kankaghosh
(Querist) 22 June 2015
Thanks Expert. But I have seen many judgments where it is mentioned that Domestic Violence petition is not a complaint and hence section 200 and 204 does not apply.
If anybody from you have a suitable citation kindly let me know or the link to make my issue stronger.
Top of that I request you to kindly guide me, once the W/S or W/O by defendant is submitted by Ld counsel and such submission is accepted by Ld Magistrate how much sustainable is the ex parte order without considering the W/O or W/S of defendant in the eye of law under PWDVA Act
Which points can be useful to strongly argue.
Kindly guide.
Thanks
Kanka
