IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1677 of 2009()
1. AYYAPPAN, AGED 50 YEARS,
... Petitioner
2. SHIJU, AGED 20 YEARS,
3. BIJU, AGED 19 YEARS,
4. BINU, AGED 18 YEARS,
5. SIVANAND, AGED 45 YEARS,
6. RADHA, S/O.SIVANANDAN,
Vs
1. SHEEBA, AGED 29 YEARS,
... Respondent
2. SUB INSPECTOR OF POLICE,
3. STATE OF KERALA,
For Petitioner :SRI.N.K.MOHANLAL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/07/2009
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.1677 of 2009
--------------------------
ORDER
Petitioners are the accused in M.C.No.43/2009
on the file of Judicial First Class Magistrate’s
Court, Karunagappally. First respondent, the widow
of deceased Sabu, son of the first petitioner,
filed a petition under Section 12 of Protection of
Women from Domestic Violence Act, 2005 (hereinafter
referred to as ‘the Act’) before Judicial First
Class Magistrate’s Court, Karunagappally. As per
Annexure-A5 order dated 4.5.2009 in
C.M.P.No.4279/2009, an interim protection order was
passed under Section 23 of the Act. The order
restrains petitioners 1 to 5 from causing any
domestic violence against the first respondent and
also from forcible dispossessing her from their
residential building. On 15.5.2009, F.I. Statement
of the first respondent was recorded, wherein, it
was alleged by the first respondent that after the
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interim protection order passed by the Magistrate,
Sub Inspector of Police, Chavara Police Station
took her and her daughter to the building and while
they were residing in the building, on 13.5.2009,
petitioners herein came there and scolded her and
thereafter, on 15.5.2009, when she had gone to
Kollam and returned back by 5 p.m., it was found
that her articles from the house were thrown out in
the courtyard and the house was locked. It is
alleged that said acts were committed by the
petitioners and therefore, they committed an
offence as provided under Section 31 of the Act.
Annexure-A4 FIR and Crime No.320/2009 of Chavara
Police Station were registered and are being
investigated. This petition is filed under Section
482 of Code of Criminal Procedure originally for a
relief to direct Sub Inspector of Police not to
arrest the petitioners and later, got the relief
portion amended incorporating a prayer for quashing
the FIR.
CRMC 1677/09 3
2. Learned counsel appearing for the
petitioners and first respondent and learned Public
Prosecutor were heard.
3. Learned counsel appearing for the
petitioners argued that though under Section 31 of
the Act a breach of an interim protection order is
liable for punishment provided therein, unless the
order is served on the petitioners, they cannot be
prosecuted for breach of the order. It was pointed
out that as per Protection of Women from Domestic
Violence Rules, 2006, it is for the Protection
Officer to serve the protection order passed under
the Act on the petitioners and Annexures-A6(a) and
A6(b) Form-VII notices issued by the Magistrate
were served on the petitioners only on 17.5.2009
and therefore, petitioners cannot be prosecuted for
the acts allegedly committed prior to that date.
It is, therefore, argued that continuation of the
proceedings is only an abuse of process of the
court. Learned counsel also pointed out that though
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Section 31 of the Act provides for punishment for
breach of a protection order or an interim
protection order, unless the sixth petitioner is a
respondent in the proceedings before the Magistrate
and a party to the interim protection order, she
cannot be prosecuted for the offence under Section
31 of the Act and in any case, prosecution as
against the sixth petitioner is an abuse of process
of court and is to be quashed. Learned counsel
finally submitted that even if the case is not
quashed, Magistrate may be directed to grant bail
to the petitioners.
4. Learned counsel appearing for the first
respondent pointed out that based on the documents
produced by the petitioners, the case cannot be
quashed. It is pointed out that as per the F.I.
Statement, first respondent was brought to that
house by the Sub Inspector of Police, Chavara on
6.5.2009 and till 13.5.2009, she was residing there
and even if there was no personal service of the
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interim protection order, if the factum of the
order was disclosed to the petitioners and they
committed breach of the order, they are liable for
punishment, as provided under Section 31 of the
Act. It was argued that whether the interim
protection order was served on the petitioners,
before the case was registered or not, cannot be
decided in this petition and can be decided only on
evidence and therefore, in any case, it cannot be
quashed.
5. Annexure-A5 is an interim protection order
passed under Section 23 of the Act. Under Section
31, if there is a breach of the protection order or
the interim protection order by the respondents in
that order, they are liable for punishment. A
protection order passed under Section 18 of the Act
or an interim protection order passed under Section
23, would come into effect on the date of the
order. True, if it is not known to the petitioners,
there cannot be a breach of the order, with the
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knowledge that they are thereby committing breach
of the order. The question whether petitioners
were aware of the order and whether the interim
protection order was served on the petitioners or
not, before the date on which Annexure-A4 FIR was
registered, cannot be decided in this petition
filed under Section 482 of Code of Criminal
Procedure. That is a matter to be considered by
the Magistrate. Petitioners are entitled to agitate
the question before the Magistrate. Hence, based
on the submission that Annexure-A5 order was not
served on the petitioners, the FIR cannot be
quashed as sought for.
6. But, as is clear from Section 31 of the
Act, it is only the respondents in the order, who
committed breach of the protection order or the
interim protection order, who could be prosecuted
for the said offence. When Annexure-A5 order shows
that sixth petitioner was not a party to the
proceedings before the Magistrate and as she was
CRMC 1677/09 7
not a respondent in Annexure-A5 order, she cannot
be prosecuted for its breach under Section 31 of
the Act. Therefore, the case as against the sixth
petitioner can only be quashed. Petitioners 1 to 5
are entitled to raise all the contentions before
the Magistrate.
7. Learned counsel appearing for the
petitioners then submitted that there may be a
direction to the Magistrate to grant bail to the
petitioners. To grant bail or not is to be decided
by the Magistrate. I find no reason to believe that
Magistrate will not exercise the jurisdiction vest
on him. Petitioners are at liberty to surrender
before the Magistrate and seek bail. Learned
counsel sought a further direction to consider the
application for bail on the date of surrender
itself. I find no reason to believe that
Magistrate will not consider it. Hence, no such
direction is warranted.
CRMC 1677/09 8
Petition is allowed in part. Crime No.320/2009
of Chavara Police Station as against the sixth
petitioner alone is quashed.
28th July, 2009 (M.Sasidharan Nambiar, Judge)
tkv