High Court dismissed criminal miscellaneous petition alleging illegal police registration of FIR. Court held offence under Section 31 DV Act is cognizable per Section 32, validating police action to investigate breach of interim order involving harassment/threats.
The criminal miscellaneous case is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
(C.R)
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941
Crl.MC.No. 1848 of 2019
CRIME NO. 109/2019 OF Chalakkudy Police Station , Thrissur
PETITIONER/S:
1 PAUL, AGED 54 YEARS S/O.POULOSE, MANJOORAN HOUSE, KOODAPPUZHA, EAST CHALAKUDY, THRISSUR DT.
2 SASIKALA, AGED 35 YEARS W/O.PAUL, MANJOORAN HOUSE, KOODAPPUZHA, EAST CHALAKUDY, THRISSUR DT.
BY ADV. SMT.M.R.REENA
RESPONDENT/S:
OTHER PRESENT:
SRI.AMJAD ALI, PUBLIC PROSEUTOR FOR R1, SRI.P.JINESH PAUL FOR R2
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.5.2019, THE COURT ON 07.06.2019 PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
================== Crl.M.C.No. 1848 of 2019 ================== Dated this the 7th day of June, 2019
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.
Crl.M.C.1848/19 - : 3 :-
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).
Crl.M.C.1848/19 - : 4 :-
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.
Crl.M.C.1848/19 - : 5 :-
“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
Crl.M.C.1848/19 - : 6 :-
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
Crl.M.C.1848/19 - : 7 :-
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.
sdk+
Sd/- ALEXANDER THOMAS, JUDGE
Crl.M.C.1848/19 - : 8 :-
APPENDIX
| PETITIONER'S/ | S EXHIBITS: | ||
|---|---|---|---|
| ANNEXURE A1 | CERTIFIED COPY | O | F THE F.I.R. DATED |
| 10/02/2019 IN CHALAKUDY POLICE |
C STA |
RIME NO.0109/2019 OF TION. |
|
| ANNEXURE A2 | A TRUE COPY OF PETITION. |
THE | ABOVE SAID MC NO.14/2019 |
| ANNEXURE A3 | A TRUE COPY OF THE JFCMC CHALAK |
THE UDY |
INTERIM ORDER PASSED BY DATED 05/02/2019. |
| ANNEXURE A4 | A TRUE COPY OF PETITIONERS IN M |
THE C NO |
OBJECTION FILED BY THE .14/2019. |
| ANNEXURE A5 | A TRUE COPY OF FACTO COMPLAINAN |
THE T DA |
COMPLAINT FILED BY THE TED 10/02/2019. |
| ANNEXURE A6 | A TRUE COPY OF DE FACTO COMP CHALAKUDY DATED |
THE LAIN 25/0 |
MC 77/2014 FILED BY THE ANT BEFORE THE JFCMC 8/2014. |
| ANNEXURE A7 | A TRUE COPY O CHALAKUDY DATED |
F T 07/0 |
HE ORDER BY THE JFCMC 9/2015 IN MC 77/2014. |
3 issues framed by the court
Whether the police have authority to register a crime for an offence under Section 31 of the Domestic Violence Act, 2005.
Whether the offence under Section 31 of the DV Act constitutes a cognizable offence requiring no prior court sanction under CPC.
Whether the registration of the impugned FIR is illegal, improper, or ultra vires given the allegations of breach of interim order.
3 provisions across 2 enactments
PAUL
SASIKALA
STATE OF KERALA
ROS
ALEXANDER THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
