Whether Police can Register Crime under Section 31 of Domestic Violence Act [CASE LAW]

Penal Code, 1860 - Ss. 294 (b), 506, 323, 34 - Protection of Women from Domestic Violence Act, 2005 - S. 31 – Penalty for breach of protection order by respondent - Cognizance and proof - Accused persons had gone to the residence and threatened and manhandled - therefore ordinarily the matter would require investigation - No illegality or impropriety has been committed in the registration of the crime.

Sec.31 provides that the above offences are cognizable. Since the offence under Sec.31 of the DV has been classified as an cognizable offence as per the provisions of the abovesaid statute, it cannot be said that the action of the Police in registering the impugned Anx. A1 crime including the one under Sec. 31 of the DV is in any manner illegal, improper or ultra vires. Moreover, it has to be borne in mind that the specific allegations raised by the 2nd respondent in Anx. A5 petition is that the accused persons had gone to her residence and uttered obscene words and threatened and manhandled her, etc. Therefore, the allegations in Anx. A5 petition would constitute an offence as per Sec. 31 of the DV Act, inasmuch as it discloses allegations that the petitioners herein, who are the respondents Anx. A3 interim order in the DV application, have violated the directives in Anx.A-3 order granted by the jurisdictional Magistrate's court concerned in DV proceedings. Since the said offence under Sec. 31 is cognizable and the correctness or otherwise of the allegations raised in Anx. A5 would require investigation, etc. no illegality can be attributed in the registering of the impugned Anx. A-1 crime. Of course there could be some cases, where interim order could be in the nature of a interim direction to the respondents in the DV application, not to alienate immovable property , etc. and in such cases, the allegation that the said interim order in the DV proceedings not to alienate the above property has been breached by the other party concerned, may not require much investigation and the same could be dealt with as a complaint to be filed directly before the learned Magistrate as it would be very easy to determine the factual controversy as to whether the immovable property has been alienated by the execution of the registered deed, etc. by the other party concerned in breach of the interim order granted in the application. Such is not the nature of the allegation in the instant case. In the instant case, the allegation in Anx. A5 petition is that the petitioners had gone to the residence of the 2nd respondent and threatened and manhandled her, etc. and therefore ordinarily the matter would require investigation etc. In the light of the facts and circumstances of this case, this Court is of the view that no illegality or impropriety has been committed in the registration of the impugned Anx. A-1 crime. This Court has not dealt with any other issues except the abovesaid limited point. All other issues are left open to be raised and decided in appropriate proceedings, in the manner known to law. With these observations and directions, the above Criminal Miscellaneous Case will stand dismissed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ALEXANDER THOMAS, J.

Crl. M.C. No. 1848 of 2019

Dated this the 7th day of June, 2019

CRIME NO. 109/2019 OF Chalakkudy Police Station , Thrissur

Paul v. State of Kerala

PETITIONER/S: BY ADV. SMT.M.R.REENA

RESPONDENT/S: SRI.AMJAD ALI, PUBLIC PROSEUTOR FOR R1, SRI.P.JINESH PAUL FOR R2

O R D E R

The two petitioners herein are accused in Anx.A-1 Crime No. 109/2019 of Chalakkudy Police Station, which has been registered on the basis of the complaint of the 2nd respondent lady defacto complainant for offences punishable under Sec. 294(b), 506, 323, 34 of the I.P.C. and Sec. 31 of the Protection of Women from Domestic Violence Act, 2005 (DV Act). The petitioners would contend that the allegation of breach of the protection order passed by learned Magistrate under the DV Act and consequential implication of the petitioners as per Sec.31 of the DV Act in the impugned order is essentially arising out of a private complaint filed before the Judicial First Class Magistrate's Court, Chalakkudy and hence the Police authorities have no authority to take cognizance of the offence as per Sec. 31 of the Act. Further that the offences as per Secs.294(b), 323 and 506 are non-cognizable offences and that the Police have no authority to proceed against the petitioners without prior sanction of the court under Sec. 155(2) of the Cr.P.C.

2. Heard Smt.M.R.Reena, learned counsel appearing for the petitioners, Sri.Amjad Ali, learned Prosecutor appearing for R-1 and Sri.P.JineshPaul, learned counsel appearing for contesting respondent No.2 (lady defacto complainant).

3. The 2nd respondent, who is the mother of the 1st petitioner and the mother-in-law of the 2nd petitioner, has filed Anx. A-2 M.C.No.14/2019 before the Judicial First Class Magistrate's Court, Chalakkudy, in terms of the provisions contained in Sec. 12 of the DV Act, wherein the learned Magistrate has granted Anx. A-3 interim protection order as per order dated 5.2.2019 on Crl.M.P. No.980/ 2019 in M.C.No.14/2019. The petitioners herein, who are the respondents in Anx. A-2 M.C., have filed detailed objections as per Anx. A-4, to Anx.A-2 M.C., contending that the allegations in Anx.A-2 M.C. are false. The case of the 2nd respondent defacto complainant against the petitioners herein is that after the grant of Anx. A-3 interim order in the DV proceedings, on 10.2.2019 at about 8.30 a.m. the petitioners herein had gone to the 2nd respondent's house and uttered obscene words against her and threatened and manhandled her. That the 2nd respondent herein has filed Anx. A5 complaint/ petition dated 10.2.2019 before the SHO, Chalakkudy, complaining of the abovesaid alleged acts of the petitioners herein. It is on the basis of Anx.A5 complaint that the Police authorities have registered the impugned Anx.A-1 FIR in Crime No.109/2019 of Chalakkudy Police Station, for offences punishable under Sec. 294(b), 406, 323 and 34 of the I.P.C. and Sec. 31 of the DV Act, wherein the petitioners herein have arrayed as the accused. The petitioners have raised various contentions regarding the merits of the matter and have contended that the entire allegations raised in Anx. A-2 DV application are false and motivated and that civil case is also pending between the petitioners herein and the 1st petitioner's elder brothers as O.S.No. 95/2015 on the file of the Munsiff's Court, Chalakkudy, filed by the 1st petitioner herein in the matter of fixation of boundary of their property. It is stated that the present false allegations are made by the 2nd respondent only on account of such family disputes.

4. This Court need not get into the merits as well as the correctness or otherwise of the allegations raised in Anx. A-2 DV application and that is a matter to be determined independently by the jurisdictional Magistrate's court concerned. The main point that is to be considered by this Court is as to whether the Police have authority to register a crime as per Anx. A-1 for offence under Sec. 31 of the DV Act. Sec. 31 of the DV Act reads as follows:

“Sec.31: Penalty for breach of protection order by respondent.-- (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrate may also frame charges under Section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.”

Sec. 32 of the DV Act reads as follows:

“Sec. 32: Cognizance and proof.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of Section 31 shall be cognizable and non-bailable.

(2) Upon the sole testimony of the aggrieved person, the Court may conclude that an offence under sub-section (1) of Section 31 has been committed by the accused.”

Sec.31 provides that the above offences are cognizable. Since the offence under Sec.31 of the DV has been classified as an cognizable offence as per the provisions of the abovesaid statute, it cannot be said that the action of the Police in registering the impugned Anx. A1 crime including the one under Sec. 31 of the DV is in any manner illegal, improper or ultra vires. Moreover, it has to be borne in mind that the specific allegations raised by the 2nd respondent in Anx. A5 petition is that the accused persons had gone to her residence and uttered obscene words and threatened and manhandled her, etc. Therefore, the allegations in Anx. A5 petition would constitute an offence as per Sec. 31 of the DV Act, inasmuch as it discloses allegations that the petitioners herein, who are the respondents Anx. A3 interim order in the DV application, have violated the directives in Anx.A-3 order granted by the jurisdictional Magistrate's court concerned in DV proceedings. Since the said offence under Sec. 31 is cognizable and the correctness or otherwise of the allegations raised in Anx. A5 would require investigation, etc. no illegality can be attributed in the registering of the impugned Anx. A-1 crime. Of course there could be some cases, where interim order could be in the nature of a interim direction to the respondents in the DV application, not to alienate immovable property , etc. and in such cases, the allegation that the said interim order in the DV proceedings not to alienate the above property has been breached by the other party concerned, may not require much investigation and the same could be dealt with as a complaint to be filed directly before the learned Magistrate as it would be very easy to determine the factual controversy as to whether the immovable property has been alienated by the execution of the registered deed, etc. by the other party concerned in breach of the interim order granted in the DV application. Such is not the nature of the allegation in the instant case. In the instant case, the allegation in Anx. A5 petition is that the petitioners had gone to the residence of the 2nd respondent and threatened and manhandled her, etc. and therefore ordinarily the matter would require investigation etc. In the light of the facts and circumstances of this case, this Court is of the view that no illegality or impropriety has been committed in the registration of the impugned Anx. A-1 crime. This Court has not dealt with any other issues except the abovesaid limited point. All other issues are left open to be raised and decided in appropriate proceedings, in the manner known to law.

With these observations and directions, the above Criminal Miscellaneous Case will stand dismissed.