Patna High Court
Prashat Kumar vs The State Of Bihar on 23 June, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.657 of 2024
Arising Out of PS. Case No.- Year-0 Thana- BEGUSARAI TOWN District- Begusarai
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1. Prashat Kumar Son Of Shayam Kishore Singh Village- Iniyar, Ps- Muffasil,
Dist- Begusarai
2. Mintu Singh Son Of Shyam Kishore Singh Village- Iniyar, Ps- Muffasil,
Dist- Begusarai At P/A- Lohiya Nagar, Ward No. 28, Ps- Town (lohiya
Nagar Op), Dist- Begusarai
3. Shyam Kishore Singh Son Of Late Laxhmi Narayan Singh Village- Iniyar,
Ps- Muffasil, Dist- Begusarai At P/A- Lohiya Nagar, Ward No. 28, Ps- Town
(lohiya Nagar Op), Dist- Begusarai
... ... Petitioner/s
Versus
1. The State of Bihar
2. Archana Kumari Wife Of Prashant Kumar Village- Ramdiri Tola Ram
Nagar, Ps- Matihani, Dist- Begusarai
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Dr. Anjani Pd. Singh, Advocate
For the Respondent/s : Ms. Renu Kumari, APP
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 23-06-2025
The petitioners are the husband, mother-in-law and
father-in-law of the opposite party no.2 in a case bearing D.V.
Case No. 2P/2020 filed by the opposite party no.2 under Section
12 of the Protection of Women from Domestic Violence Act,
2005 (hereinafter referred to as ‘D.V. Act, 2005‘) for various
reliefs contained in Section 17, 18, 19, 20 and 22 of the said
Act. By an order dated 21.01.2020, the learned Chief Judicial
Magistrate, Begusarai took cognizance upon the application
under Section 12 of the D.V. Act, 2005. The said order was
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challenged by the petitioners in Criminal Appeal No. 44/2023.
The learned Additional Sessions Judge-II, Begusarai with an
impugned judgment dated 27.06.2024 dismissed the said appeal
affirming inter alia that the order dated 21.01.2020 passed in
D.V. Case No. 2P/2020 is legal, valid and proper.
2. The petitioners have challenged the said order in
the instant revision. The only question involved in the instant
revision is as to whether an application under Section 12 of the
D.V. Act is a complaint within the meaning of Section 200 of
the Cr.P.C. and whether the order of cognizance is bad in law or
not.
3. The aforesaid question was very recently decided
by the Hon’ble Supreme Court in Shaurabh Kumar Tripathi vs.
Vidhi Rawal reported in 2025 SCC OnLine SC 1158. Section
12 of the D.V. Act 2005 authorises an aggrieved person or a
Protection Officer or any other person on behalf of the
aggrieved person to prefer an application to the Magistrate
seeking one or more reliefs under the Act. Section 12 runs thus:
“12. Application to Magistrate- (1) An
aggrieved person or a Protection Officer or any other
person on behalf of the aggrieved person may present an
application to the Magistrate seeking one or more reliefs
under this Act:
Provided that before passing any order on
such application, the Magistrate shall take into
consideration any domestic incident report received by
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(2) The relief sought for under sub-section (1)
may include a relief for issuance of an order for payment
of compensation or damages without prejudice to the
right of such person to institute a suit for compensation or
damages for the injuries caused by the acts of domestic
violence committed by the respondent:
Provided that where a decree for any amount
as compensation or damages has been passed by any
court in favour of the aggrieved person, the amount, if
any, paid or payable in pursuance of the order made by
the Magistrate under this Act shall be set off against the
amount payable under such decree and the decree shall,
notwithstanding anything contained in the Civil
Procedure Code, 1908 (5 of 1908), or any other law for
the time being in force, be executable for the balance
amount, if any, left after such set off.
(3) Every application under sub-section (1)
shall be in such form and contain such particulars as may
be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of
hearing, which shall not ordinarily be beyond three days
from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose
of every application made under sub-section (1) within a
period of sixty days from the date of its first hearing.”
4. The term ‘Magistrate’ has been defined under
Section 2(i) which is as under:
“2(i) “Magistrate” means the Judicial
Magistrate of the first class, or as the case may be, the
Metropolitan Magistrate, exercising jurisdiction under the
Criminal Procedure Code, 1973 (2 of 1974) in the area
where the aggrieved person resides temporarily or
otherwise or the respondent resides or the domestic
violence is alleged to have taken place”.
5. Thus, Section 12 of the D.V. Act, 2005 makes a
provision enabling an aggrieved person, a Protection Officer or
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any other person on behalf of an aggrieved person to make an
application to the learned Magistrate seeking one or more relief
provided in Chapter IV. In exercise of the rule making power
under Section 37 of the D.V. Act, 2005, the D.V. Rules, 2006
have been framed. Rule 6(1) of the D.V. Rules, 2006 provides
that every application of the aggrieved person made under
Section 12 shall be in Form II appended to the Rules.
6. The Hon’ble Supreme Court thereafter held in
paragraph nos. 18 and 19 as hereunder:
18. “As can be seen from the scheme of the
DV Act, 2005 and in particular section 12, it is not a
complaint under Section 200 of the Cr.P.C. or Section 223
of the BNSS. While dealing with a complaint under
Section 200 of the Cr.P.C., the learned Magistrate cannot
mechanically take cognizance of the offences alleged in
the complaint. To ascertain the truth about the allegations
made in the complaint, the learned Magistrate is required
to examine the complainant and witnesses, if any. Only
after the learned Magistrate is satisfied that a case is
made out to proceed against the accused, a process is
issued and cognizance is taken. This is also true about a
complaint under Section 223 of the BNSS. However,
Section 223(2) of the BNSS takes it a step further. It
provides that no cognizance of an offence can be taken by
the Magistrate without giving an opportunity of being
heard to the accused.
19. In case of an application under Section 12
of the DV Act, 2005, as provided in sub-Section 4 thereof,
the learned Magistrate is duty bound to fix the first date of
hearing which shall not ordinarily be beyond three days
from the date of receipt of the application by the Court.
Section 13(1) provides that a notice of the date fixed in
terms of sub-Section 4 of Section 12 shall be served on the
respondent or any other person in the manner laid down
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therein. Rule 2 of the DV Rules, 2006 lays down the
methods and means of service of notice issued under
Section 13(1).”
7. Thus, an application under the D.V. Act, 2005 is
not a complaint within the meaning of Section 200 of the Cr.P.C.
or 223 of the BNSS. Therefore, there is no need to take
cognizance upon an application under the D.V. Act, 2005. The
learned Magistrate on receipt of the application shall only fix a
date for hearing within three days from the date of filing of the
application under Section 12(4) of the said Act. Therefore, this
Court finds that the order of cognizance taken by the learned
Magistrate as well as the order of the learned Additional
Sessions Judge dismissing the appeal against the order of
cognizance is bad in law. Both the Courts below did not
consider the provision under Sections 12 and 13 of the D.V. Act,
2005.
8. Therefore, while setting aside the above orders, the
learned Judicial Magistrate, Begusarai is directed to issue notice
upon the present petitioners in D.V. Case No. 2(P)/2020 for
hearing of the application under Section 12 of the said Act. Such
notice shall be sought upon the present petitioners in terms of
Rule 2 of the D.V. Rules, 2006 following the modes and means
of service of notice issued under Section 13(1) of the said Act.
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9. With the above order, the instant criminal revision
is disposed of.
10. There shall be no further order as to cost.
(Bibek Chaudhuri, J)
Anushka/-
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