Law Web: Whether police can register offence U/S 31 of Domestic violence Act?

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.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR. JUSTICE ALEXANDER THOMAS

Crl.MC.No. 1848 of 2019

PAUL, Vs STATE OF KERALA,

Crl.M.C.No. 1848 of 2019

Dated this the 7th day of June, 2019

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.”