Sunday, 16 June 2019

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.”
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.

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