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bail498 (Junior Advocate)     15 December 2011

Dv case & warrant

Dear Experts,

In my DV friend had been included.Court issued summons on him by post at his home address.

He was not present at homea and his family members did not accepted the same,saying that the person is not at home.

Now,court had issued warrant agaisnst him.How can it be possible?What is to be done for next step?



Learning

 16 Replies

pujols20 (Techie)     15 December 2011

In which location has this happened ?

In DVC there is not provision to issue warrants...

You need to get the warrants recalled/revoked on the grounds that notices not served and even if notices served, magistrate can give exparte decisions. Questions warrant should not arise.

Once it is recalled, approach HC to take immediate action against magistrate for misuse of power/authority to issue warrant.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     15 December 2011

Dear bail498

the summon has been served (Deemed Service) because if any person is not present at his home & the family member did not accept the same then the persumption is that the summon is serve to the party, it is his duty to communicate with postal dept.

feel free to call

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     15 December 2011

The magistrat have power to issue warrant if accused does not present before the court.

tejas lal (teacher)     15 December 2011

Dear Nadeem Sir,

If he was in other state i.e from his native place to another,How can he communicate with postal Dept.?

pujols20 (Techie)     22 December 2011

Mr Nadeem,

Can you tell me what is the difference between respondent and accused ?

Will the husband and his family members be treated as respondents or accused ?

Thanks !

Adv. Chandrasekhar (Advocate)     23 December 2011

I agree with Mr. pujols.

DV Act is a civil law, even though it is tried by the magistrate.  There is no provision to issue non-bailable / bailable arrest warrantsqua application under Section 12 of the Act.  (It is a different case that if there is protection order passed by the court and its violation and non-appearance of the OFFENDER attracts NBW/Bailable Warrant).  Even Section 28 does not give such elbow room for the magistrate to issue non-bailable/bailable arrest warrants.

The problem with DV Act is that the magistrates, who are presiding officers in these cases are not trained properly about the provisions of this Act and they follow the procedure laid down in the criminal procedure code as a routine matter. The advocates who should and could assist the court, some times do not do that for various reasons including the ignorance from their side itself.  There are certain vested interests, who create mis-information about DV Act and create a fear psychosis among the ignorant husbands, so that they can chant solgans along with them about so called "gender biased laws".

As a matter of fact, a friend cannot be a respondent in DV Case.

See it from other angle also, the reliefs those can be sought under DV Act cannot be against any friend of the husband's family.

If the applicant has any grievance against the friend, depending upon the facts, only criminal/civil remedy will be available to her but not definetely under DV Act.  

1 Like

(Guest)
Under DV Act your friend cannot be included as per the defination of the domestic violence act below
 
Section 2(f) in The Protection Of Women From Domestic Violence Act, 2005
(f) " domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

pujols20 (Techie)     23 December 2011

Stanley,

Do you think magistrates are using "brains" while adding respondents in the DV case !!!


In my case itself there are couple of respondents added who actually should not be part of the case based on section 2(q) and 2(f). We filed a application to delete the names and brought it to the notice of the "intelligent" magistrate but the response we got  was "let us check it at the time of trials, not now"

bail498 (Junior Advocate)     24 December 2011

In my DV firsr 498a had been applied against me & my parents & friend. Myf riend had been excluded police by police in 498a.Now,same FIR submitted in DV act.

In FIR she had given her statement that my friend is living at my house.

Summons of my friend & ours came to my house by police for DV case.I & my parents accepted the same.For my friend police replied to court that "This person is not living at this place".

Now,court sent summons to my friend on his Home address.How can it possible for giving differnt address?

What should be done?


(Guest)

I agree with you Pujols and Adv Chandu  

Sudhir Kumar, Advocate (Advocate)     22 January 2012

Mr Nadeem has givne clear advise. DV Act ios a criminal legislation the accused did not appear and NBW is a normal process.

Tajobsindia (Senior Partner )     22 January 2012

 

 

Originally posted by :Adv. Chandu 09868332610

"

Take: I disagree to rata rataya statement of Adv. Chandu made to a fellow brother of Bar.


DV Act is a civil law, even though it is tried by the magistrate.  There is no provision to issue non-bailable / bailable arrest warrants qua application under Section 12 of the Act.  (It is a different case that if there is protection order passed by the court and its violation and non-appearance of the OFFENDER attracts NBW/Bailable Warrant).  Even Section 28 does not give such elbow room for the magistrate to issue non-bailable / bailable arrest warrants.
Take: That is what happens when what I wrote about The Act 2005 you donot read and then say above. I forecasted such “misuse" illustratively by both aggrieved person + advocate + by opportunists like you. Now re-read same interpretations as mentioned in my older 4 posts and next time pick some more lines out of my own past posts and quote to fellow Advocates (junior) as your gyan.


The problem with DV Act is that the magistrates, who are presiding officers in these cases are not trained properly about the provisions of this Act and they follow the procedure laid down in the criminal procedure code as a routine matter.
Take: Tomorrow Adv. Chandu will say even Hon'ble CJI is not appropriately experienced. So watch for this space. The main problem is by people like Adv. Chandu who wants more female clients and not Justice.  Had it not been so you would have been the first here to thread-bear Sections of The Act 2005 for common consumptions and or would have challenged The Act 2005 itself. Discuss with your mentor now - who tells Law to a Judicial Officer ? - is it not a Advocate who tells what is Law or is the other way round ! Simple basics you need to re-learn again it seems.


The advocates who should and could assist the court, some times do not do that for various reasons including the ignorance from their side itself. 
Take:  Adv. Chandu being advertised with his Cell no. as Adv. is telling a Junior Adv. that bete Advocates are not properly trained so are you also not properly trained. Instead of atleast advising a junior Adv. this is what budding Adv. hear from established Adv. as morale booster. Now the beauty of Adv. Chandu this reply in this brief has a paradigm shift as follows as his time pass activity when he cannot give legal remedy atleast to a Junior Adv.;



There are certain vested interests, who create mis-information about DV Act and create a fear psychosis among the ignorant husbands, so that they can chant solgans along with them about so called "gender biased laws".
Take: Gurudev first advise a Junior Adv. as per his query question what should he do step by step and what remedies a neighbor has and then the respondent / defended husband’s friend has then re-kindle chanting about 'vested interest'. here. Your slogans about vested interest are now bad tunes to my ears and so is re.: Versha Kapoor which I am sure you will pop again to me. If you want to know Law in perspective about re.: Versha Kapoor then say so I i will give you 2 full legal page gyan on Versha Kapoor to end all your attachment to this one and only Judgment that you are found of quoting time and again.


As a matter of fact, a friend cannot be a respondent in DV Case.
Take: Who says a friend cannot be respondent when in this brief a friend has already been made and admitted and further summon issued followed by BW and or a NBW is out which all takes months to do with atleast 3-4 hearing dates already passed and you say a friend cannot be made respondent!!!. Common Chandu don’t act so ignorant about The Act 2005. Even sitting here I can make you by name respondent and even get issued a summon if I want to come to that level had I entertain another female clients mind it. And don't think of giving me Prabhakar style threat of defamation suit - believe me once you quash my summon on DV you cannot succeed in any nature of defamation case. In case you think I am in doubt put here judgment on defamation on similar nature.


See it from other angle also, the reliefs those can be sought under DV Act cannot be against any friend of the husband's family.
Take: Instead of building further pentagrams guide a Junior Advocate on how the neighbour and or friend who is in another State right now are to be bailed out as BW / NBW cannot be recalled by R1 instance now ! Who will spend time / money status lost with police visit for serving summon and or warrent on neighbour and or a friends legal aid tell that too to Junior Advoate. Atleast this much you can guide ki nahi to a Junior Advocate if you have born repulsion to mens here.


If the applicant has any grievance against the friend, depending upon the facts, only criminal/civil remedy will be available to her but not definetely under DV Act. 
Take: Too late to spell this belated gyan as proceedings against a friend including a neighbour by address is already on floor of Court. 

"

 

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     22 January 2012

Well not much is known about TAJOBSINDIA, but he has given shart reaction.

Far advocate CHANDU, pl note that the procedure in the act is provided as CRPC hence all these problems.


(Guest)

 

Domestic Violence Act, 2005,

 

Section 28 Procedure

 

28. Procedure.-(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of  the Code of Criminal Procedure, 1973 (2 of 1974).

 

(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. 


Section 12 Application to Magistrate.

Section 18 Protection Order

Section 19 Residence Order  

Section 20 Monetary Order

Section 21 Custody Order

Section 22 Compensation Order

Section 23 Power to grant interim and ex parte order


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