Sunday, 23 September 2012

offence can be registered against respondent as per DV Act only in case of breach of protectiion order

It is thus clear that an offence under Section 31 of the Act is only for breach of either a protection order or an interim protection order passed under Section 18 and as defined under Section 2(o) of the Act. All other orders

passed either under Section 19, 20, 21 or 22 could only be executed as provided in the Code of Criminal Procedure in view of the mandate under Section 28 of the Act as Section 28 provides that except as provided under the 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 Code of Criminal Procedure. Therefore only if the order passed by the Magistrate is a protection order or an interim protection order, the Magistrate can direct registration of the case and investigate the case under Section 31 of the Act.
10. Section 21 of the Legal Services Authority Act makes every Award passed by the Adalat a decree or order of the court. It reads:-21. Award of Lok Adalat.- (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court fee paid

in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870).
(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award."
Though under Section 21 of Legal Services Act, an award passed by the Adalat is deemed to be an order or a decree of the respective court, which should have passed it otherwise, the provision is applicable only in respect of an award. Unless an award is passed, there is no executable award to be treated as the order or decree of the court as provided under Section 21 of the Legal Services Authorities Act to be executed. Even if an award is passed, unless the said award is an order made in terms of Section 18, it cannot be a protection order or an interim protection order and its breach will not attract an offence under Section 31 of the Act. The order of the Adalat dated 8-11-2008 is first of all not an Award of the AdalatHence under Section 21 it cannot be treated as the order of the Court. Moreover, that

order is not a protection order under Section 18 or an interim protection order. For its breach, an offence under Section 31(1) of the Act is not committed
Kerala High Court
Kanaka Raj, S/O.Kunjan Nadar vs State Of Kerala Represented By Its on 24 June, 2009
Whether a Magistrate is competent to direct registration of a case and investigate an offence under Section 31 of Protection of Women from Domestic Violence Act, 2005 in the absence of a protection order or an interim protection order, is the question to be decided in this petition.

2. Second respondent filed a petition under Section 12 of Protection of Women from Domestic Violence Act (hereinafter referred to as the Act) before Judicial First Class Magistrate, Kattakkada. It was referred to Taluk Lok Adalat, Kattakkada. On 8-11-2008 a settlement was arrived at, though no award was passed. Settlement arrived provide for return of gold ornaments on or before 13-12-2008, transfer of half right in the joint property, reservation of life interest of the second respondent over Crl.M.C.No.1322/2009-A
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5= cents of property, delivery of household articles to the second respondent and payment of maintenance amount of Rs.25,000/- for the children. It was again taken on 12-12-2008 at the Adalat. The second respondent was then present. But petitioner was absent. It is seen recorded that petitioner did not comply with certain conditions of the settlement and second respondent was not satisfied with the settlement and therefore she retracted from the settlement previously arrived on 8-11-2008.
3. Treating the order dated 12-12-2008 as an award and that too, an order for which penalty is provided under Section 31 of the Act, in case of breach of the order, learned Magistrate as per Annexure C order dated 3-1-2009 directed Sub Inspector of Police, Malayinkil, to register a case under Section 31 of the Act and investigate the same. Consequently, Annexure A FIR was registered. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure A FIR as well as the directions to investigate the offence in Annexure C order. Crl.M.C.No.1322/2009-A
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4. Learned Counsel appearing for the petitioner and second respondent were heard.
5. A protection order is defined in sub-section (o) of Section 2 of the Act as "means an order made in terms of Section 18". Section 18 provides for protection order. It reads:-
"18. Protection orders.- The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from- (a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person; Crl.M.C.No.1322/2009-A
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(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order."

6. Only those orders as provided in clauses (a) to (g) of Section 18, would be a protection order as defined in Section 2(o) of the Act. Section 19 provides for residence order and Section 20 provides for monetary reliefs. Crl.M.C.No.1322/2009-A
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7. Section 31 provides penalty for breach of protection order or an interim protection order by the respondent. It reads:-
"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 Magistrates 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."
Crl.M.C.No.1322/2009-A
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Section 32 of the Act provides that notwithstanding anything contained in the Criminal Procedure Code the offence under sub-section (1) of Section 31 shall be cognizable and non-bailable. Section 28(1) provides that except as provided under the Act, all proceedings for the offences under Section 31 shall be governed by the provisions of Code of Criminal Procedure.
8. Under sub-section (1) of Section 31, if the respondent breaches a protection order or an interim protection order, he shall be punishable for the sentence provided therein. Under sub-section (2) the offences, as far as practicable, shall be tried by the Magistrate, who passed the order, the breach of which has been alleged to have been caused by the accused. The offences under sub- section (1) of Section 31 is cognizable and non-bailable.
9. It is thus clear that an offence under Section 31 of the Act is only for breach of either a protection order or an interim protection order passed under Section 18 and as defined under Section 2(o) of the Act. All other orders Crl.M.C.No.1322/2009-A
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passed either under Section 19, 20, 21 or 22 could only be executed as provided in the Code of Criminal Procedure in view of the mandate under Section 28 of the Act as Section 28 provides that except as provided under the 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 Code of Criminal Procedure. Therefore only if the order passed by the Magistrate is a protection order or an interim protection order, the Magistrate can direct registration of the case and investigate the case under Section 31 of the Act.
10. Section 21 of the Legal Services Authority Act makes every Award passed by the Adalat a decree or order of the court. It reads:-
"21. Award of Lok Adalat.- (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court fee paid Crl.M.C.No.1322/2009-A
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in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870).
(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award."
Though under Section 21 of Legal Services Act, an award passed by the Adalat is deemed to be an order or a decree of the respective court, which should have passed it otherwise, the provision is applicable only in respect of an award. Unless an award is passed, there is no executable award to be treated as the order or decree of the court as provided under Section 21 of the Legal Services Authorities Act to be executed. Even if an award is passed, unless the said award is an order made in terms of Section 18, it cannot be a protection order or an interim protection order and its breach will not attract an offence under Section 31 of the Act. The order of the Adalat dated 8-11-2008 is first of all not an Award of the Adalat. Hence under Section 21 it cannot be treated as the order of the Court. Moreover, that Crl.M.C.No.1322/2009-A
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order is not a protection order under Section 18 or an interim protection order. For its breach, an offence under Section 31(1) of the Act is not committed. Unfortunately, the learned Magistrate has not followed the legal position and thereby committed an error in directing registration of the case and investigation. It cannot be sustained.
11. Petition is allowed. Annexure A FIR and the direction in Annexure C order for registration of the case under Section 31 of Protection of Women from Domestic Violence Act, 2005, are quashed.
M.SASIDHARAN NAMBIAR
JUDGE
dkr
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