IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Crl.MC.No. 1677 of 2009() ------------------------------------ MC.43/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KARUNAGAPPALLY .................... NAME AND ADDRESS OF PETITIONERS/RESPONDENTS ------------------------------------------------------------------------------- 1. AYYAPPAN, AGED 50 YEARS, SHEEBA BHAVANAM, MAVELIMURI, PANMANA VILLAGE, KARUNAGAPPALLY TALUK. 2. SHIJU, AGED 20 YEARS, S/O.AYYAPPAN, SHEEBA BHAVANAM, MAVELIMURI, PANMANA VILLAGE, KARUNAGAPPALLY TALUK. 3. BIJU, AGED 19 YEARS, S/O.AYYAPPAN, SHEEBA BHAVANAM , MAVELIMURI, PANMANA VILLAGE, KARUNAGAPPALLY TALUK. 4. BINU, AGED 18 YEARS, S/O.AYYAPPAN, SHEEBA BHAVANAM , MAVELIMURI, PANMANA VILLAGE, KARUNAGAPPALLY TALUK. 5. SIVANAND, AGED 45 YEARS, BINDU BHAVANAM, VADAKKUMTHALA, MEKE MURI, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY TALUK. 6. RADHA, W/O.SIVANANDAN, BINDU BHAVANAM, VADAKKUMTHALA, MEKE MURI, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY TALUK. BY ADV. MR.N.K.MOHANLAL NAME AND ADDRESS OF RESPONDENTS/PETITIONER ------------------------------------------------------------------------------- 1. SHEEBA, AGED 29 YEARS, SNEHALAYAM, VADAKKUMTHALA, MAKE MURI, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY TALUK. Crl.MC.No. 1677 of 2009 2. SUB INSPECTOR OF POLICE, CHAVARA POLICE STATION, KOLLAM. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 & R3 BY PUBLIC PROSECUTOR MR.AMJAD ALI. R1 BY ADV. MR.K.G.ANIL BABU, MR.A.SHANAVAS. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- 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 CRMC 1677/09 2 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 CRMC 1677/09 4 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 CRMC 1677/09 5 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 CRMC 1677/09 6 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