Criminal Appeal Case No.

40(02) of 2017

IN THE COURT OF ADDITIONAL SESSIONS JUDGE (FTC),

KARIMGANJ AT KARIMGANJ

Criminal Appeal Case No: 40(02)/2017

Present: Angshuman Kaushik, AJS

Addl. Sessions Judge (F.T.C)
Karimganj at Karimganj

1. Biswajit Kairi
2. Sabitri Kairi
3. Bikash Koiri………….....Appellant(s)/(Respondent(s)

-Versus-

1. Deepika Koiri
2. The State of Assam ...........O.P.’s/Aggrieved Person

Counsel for the Appellant : Mr. S. Islam

Counsel for the Respondent(s) : D. Chakraborty
Date of Argument : 06.07.2017
Date of Judgment : 27.03.2018

JUDGMENT
1. This Criminal Appeal filed u/s 29 of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter “DV Act”) assails the ex parte order
dated 06.05.2017, passed by the learned Addl. Chief Judicial Magistrate,
Karimganj in Misc. Case No. 124 of 2017 directing the
Appellants/Respondents to comply with the interim reliefs contained therein.
2. The O.P. No. 1/Aggrieved Person entered appearance without the

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receipt of notice on the day of admission hearing, and sought time for
hearing. Consequently, the appeal was admitted for hearing, and both the
sides were heard at length.
3. The case against the aforesaid Appellants/Respondents as echoed
from the impugned order is that they tortured the O.P. No. 1/Aggrieved
Person for money, abused her verbally etc.
4. The challenge to the impugned order has been, inter alia, on the
ground that the learned Addl. Chief Judicial Magistrate, Karimganj did not
provide any opportunity of being heard to the Appellants/Respondents,
before passing the same.
5. On the other hand, the learned counsel for the O.P. No. 1/Aggrieved
Person contended that the impugned order was passed after following the
due procedure of law.
6. I have given due consideration to the submission put forward by the
learned counsels for both the sides, and the grounds for challenge to the
impugned order set forth in the memorandum of appeal, which led to the
passing of the impugned order. In view of the same, the following question
emerges for determination for decision in respect of the present appeal;
“Whether, the impugned order passed by the learned Addl. Chief Judicial
Magistrate, Karimganj, is in conformity with the fiat enshrined in the
Protection of Women from Domestic Violence Act, 2005 (hereinafter “the DV
Act”), and if, the answer to the above is in the affirmative, is the same liable
to be interfered with?”
7. Perused the impugned ex parte order passed by the learned trial
court. The same, quite apparently has been passed u/s 23 of the DV Act,
which is reproduced below for ready reference;
“23. Power to grant interim and ex parte orders.—(1) In any
proceeding before him under this Act, the Magistrate may pass such interim
order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that
the respondent is committing, or has committed an act of domestic violence
or that there is a likelihood that the respondent may commit an act of
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domestic violence, he may grant an ex parte order on the basis of the

affidavit in such form, as may be prescribed, of the aggrieved person under
section 18, section 19, section 20, section 21 or, as the case may be, section
22 against the respondent”.
8. Therefore, after the perusal of the afore-mentioned provision, it is
manifest that, a magistrate has the power to grant both interim and ex parte
orders. As far as the interim order is concerned, he may grant the same as
he deems just and proper. However, with respect to the ex parte order, he
may grant the same upon the fulfillment of certain conditions.
9. Situated thus, to reiterate, as observed above, the main contention of
the learned counsel for the Appellants/Respondents is that they ought to
have had been given an opportunity of being heard before passing the
impugned order, and that, depriving them off it, makes the same bad in law.
The learned counsel for the O.P. No. 1/Aggrieved Person vehemently
contended that the order assailed has been passed in accordance with law,
and that, the present appeal does not deserve to be admitted. I have heard
the arguments put forward by the learned counsels for both the sides.
10. As observed in paragraph no. 8 of this appeal, section 23 of the DV
Act empowers a magistrate to grant interim and ex parte orders. But as far
as ex parte orders u/s 23(2) of the same are concerned, before granting
them, the magistrate shall have to be satisfied of the fact that an application
prima facie discloses either of the following;
; that the respondent is committing; or
; has committed an act of domestic violence; or
; that there is a likelihood that the respondent may commit an act of
domestic violence.
11. Further, the above is not adequate, justifying clothing a magistrate
with the power u/s 23 of the DV Act. In fact, the above satisfaction has to be
based on an affidavit in such form, as may be prescribed, of the aggrieved
person under section 18, section 19, section 20, section 21 or, as the case
may be, section 22 against the respondent.
12. Now, as far as ‘satisfaction’ of the magistrate in connection with prima
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facie disclosure of facts concerning ‘domestic violence’ in an application is

concerned, in the present case, the same is writ large in the impugned order.
In fact, in line no. 4, paragraph no. 6, the learned trial court has stated as
follows;
“Hence, it is found prima facie believable that the aggrieved person is the
victim of domestic violence.”
So, the first barrier with relation to passing of an order u/s 23(2) of the DV
Act, is overcome.
13. Moving on, as far as the next requirement for passing an order u/s
23(2) of the DV Act is concerned, the magistrate may grant the same on the
basis of the affidavit in such form, as may be prescribed, of the aggrieved
person under section 18, section 19, section 20, section 21 or, as the case
may be, section 22 against the respondent. It is manifest that, the
magistrate may grant an ex parte order on the basis of an affidavit,
prescribed by rules made under this Act. The rule that is referred to herein
is, Rule 7 of the Protection of Women from Domestic Violence Rules, 2006
(hereinafter “DV Rules”). The same is reproduced here for ready reference;
“7. Affidavit for obtaining ex-parte orders of Magistrate.- Every
affidavit for obtaining ex parte order under sub-section (2) of Section 23
shall be filed in Form III”.
14. Another rule that concerns with the filing of an affidavit for obtaining
an order u/s 23(2) of the DV Act is Rule 6(4) of the DV Rules, which is as
follows;
“6. Applications to the Magistrate.-
(1)…………….
(2)…………….
(3)…………….
(4) The affidavit to be filed under sub-section (2) of section 23 shall be filed
in Form III.
15. In the present case, the O.P. No. 1/Aggrieved Person has filed the
affidavit in Form III, as envisaged by the aforesaid rules. As such, the
second requirement u/s 23(2) of the DV Act is also traversed. Hence, all the
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conditions envisaged in the above section, entailing a magistrate to pass an

order under the same has been fulfilled in the case.
16. It is apposite to mention here that, the perusal of section 23 of the DV
Act makes the legal position clear, in that, the magistrate can pass an order
under the same on the affidavit of an aggrieved person. Apart from the
above section, section 28(2) of the DV Act also empowers a court to lay
down its own procedure for disposal of an application under section 12 or
under sub-section (2) of section 23. The same is reproduced below for ready
reference;
“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”.
The same is self-explanatory and does not require any deliberation on my
part.
17. Another aspect that deserves mention here is that, while considering
the question of granting ex parte ad interim or interim relief, it is incumbent
on the magistrate to consider the nature of relief(s) sought in the main
application under section 12(1) of the DV Act, inasmuch, as an interim
relief(s) under section 23 of the said Act can be granted in aid of the final
relief sought in the main application. In the present case, the nature of
relief(s) sought under section 12(1) of the Act are such that, it enables the
learned trial court to grant relief(s) under section 23 of the same.
18. Further, before resorting to passing an ex parte and interim order, by
invocation of powers u/s 23 of the DV Act, it is essential for the court to take
sufficient degree of ‘care and caution’. Paragraph 6 of the order assailed,
mirrors the same, which is not reproduced here for the sake of concision. In
fact, line no. 19 of the aforesaid paragraph visibly depicts the sufficient
degree of ‘care and caution’, taken by the learned trial court in passing the
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impugned order. The same is reproduced here for ready reference;

“The circumstances narrated by the aggrieved person and the incident
mentioned in the complaint reflects that the relief regarding the recovery of
stridhan/articles and the interim maintenance are urgent and hence, this
court proposes to pass the same as ex-parte. In view of the above and in
exercise of power U/S. 23(2)/28(2) of the PWDV Act, this court satisfied to
pass the following interim relief:…………………”
19. Another issue that solicits discussion is that, this being an appellate
court, it would not impede the exercise of discretion by the learned trial
court, while dealing with an appeal against an order passed u/s 23 of the DV
Act. Further, this court shall interfere only if it is found that the discretion
vested u/s 23 of the DV Act has been exercised quirkily and quixotically by
the learned trial court, or if it is found that the court has snubbed the settled
principles of law regulating grant or refusal of interim and ex parte relief.
20. In view of what has been discussed above, I am unable to hold that
the impugned order warrants any interference, and is therefore, not set
aside, and consequently, affirmed.
21. In the result, this appeal stands dismissed on contest in the above
terms.
22. Send a copy of this judgment and order to the learned Additional Chief
Judicial Magistrate, Karimganj.
Given under my hand and seal of this Court this the 27th day of March, 2018

(Angshuman Kaushik)
Addl. Sessions Judge (FTC),
Karimganj

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ORDER

27.03.2018 Both the sides filed advocate hazira.

The Judgment is prepared in separate sheets (6 pages) and tagged with
the Case Record.
After giving due consideration to the submissions put forward by the
learned counsels for both the sides, the grounds for challenge to the
impugned order set forth in the memorandum of appeal, and also to the
impugned order passed by the learned Addl. Chief Judicial Magistrate,
Karimganj, I am unable to hold that the same warrants any interference,
and is therefore, not set aside, and consequently, affirmed.
In the result, this appeal stands dismissed on contest in the above terms.
Send a copy of this judgment and order to the learned Addl. Chief
Judicial Magistrate, Karimganj.
Accordingly, the present appeal is disposed off on contest.

Addl. Sessions Judge (FTC),

Karimganj