The Jammu & Kashmir and Ladakh High Court has observed that proceedings under Section 12 of the DV Act are not, in strict sense, criminal in nature and therefore bar to alter/revoke an order by a Magistrate is not attracted to these proceedings.
The single-judge bench of Justice Sanjay Dhar reiterated that as per dictum in Kamatchi Vs. Lakshmi Narayanan, 2022 Latest Caselaw 314 SC, a Magistrate if, after receiving the version of the husband and his relatives in a proceeding under Section 12 of the DV Act, comes to a conclusion that no case for proceeding against them is made out, he can drop the proceedings and he can even re-call his order of interim monetary compensation granted in favour of the aggrieved person.
The Court was adjudicating upon a petition challenging the application filed by the respondents against them under Section 12 of the Protection of Women from Domestic Violence Act, 2005. This is second of its kind application moved by the respondent-wife as she previoulsy withdrew the first one by making a statement that the parties had settled their disputes outside the Court.
The contention of the petitioner was that this second-application is on the same cause of action and amounts to abuse of process of law. Praying for quashing of the same, he continued to contend that the respondent had concealed the factum of filing of earlier application under the provisions of DV Act while filing the second application.
According to the Counsel, the course adopted by respondent-wife amounts to 'forum shopping' which has been deprecated by the Supreme Court in Vijay Kumar Ghai Vs. State of West Bengal, 2022 Latest Caselaw 248 SC
The Court during the deliberation remarked that as fasr as the proceedings under Section 12 of the DV Act are concerned, the same cannot be equated with lodging of a criminal complaint or initiation of prosecution.
Reflecting on the nature of the provision and powers of the Magistrate, the Court thus observed:
"So, the trial Magistrate, after obtaining the response from the husband and his relatives etc. is well within his jurisdiction to revoke his order of issuing summons to them or he can even drop the proceedings. The learned Magistrate would be well within his jurisdiction to cancel the interim order of monetary compensation if he, upon going through the response of the husband and his relatives, finds that they have been unnecessarily roped in or that no case for grant of interim monetary compensation is made out. Since the proceedings under Section 12 of the DV Act are not, in strict sense, criminal in nature, as such, bar to alter/revoke an order by a Magistrate is not attracted to these proceedings."
Applying the law laid down above to the present case, the Court stated that it would be open for the petitioners herein to file their reply to the main petition and once that is done, the learned Magistrate would consider all the submissions that have been made by the petitioners in the instant petition and if he finds that no case for proceeding against the petitioners is made out, he would be at liberty to recall his order dated 25.10.2021 and to drop the proceedings against the petitioners.
The petition was accordingly disposed off.
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