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2009 DIGILAW 591 (AP)

Thota Laxminarayana v. T. Venkata Raman

2009-08-26

G.BHAVANI PRASAD

body2009
Judgment :- Heard Sri E.V.Bhagiratha Rao and Sri Challa Ajay Kumar, learned counsel for the petitioners respectively in Crl.P.Nos.2773 of 2009 and 2937 of 2009, Sri A. Satyanarayana, learned counsel for the first respondent in both the petitions, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor in both the petitions. Bereft of other details, the impugned order in Crl.M.P.No.1378 of 2009 in D.V.C.No.5 of 2007 on the file of the Additional Junior Civil Judge, Ponnur, dated 13.04.2009, is a sequel to the order passed by the I Additional District and Sessions Judge, Guntur, in Crl.M.P.No.101 of 2009 in D.V.A.No.78 of 2009 dated 09.04.2009. The learned Sessions Judge was considering an application from the first respondent herein for a direction to the concerned Magistrate to implement the order in D.V.C.No.5 of 2007 and the learned Sessions Judge, coming to a conclusion that an offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005, (for short ‘the Act’) appears to have been committed by the respondents before him as seen from the statements of the parties recorded, still withheld passing an order under Section 31 of the Act and due to the pendency of execution proceedings before the trial Court, directed the concerned Magistrate to follow the procedure prescribed under the Act and pass appropriate orders expeditiously. The learned Sessions Judge further directed to take up the matter from day to day, not to grant any adjournment and both the parties to appear before the trial Court on 13.04.2009. In obedience to the said order of the learned Sessions Judge, the impugned order was passed firstly dismissing the applications filed under Section 317 of the Code of Criminal Procedure by the petitioners herein for condoning their absence or dispensing with their presence and the trial Court straight away felt that there was no other option except passing sentence against the petitioners herein under Section 31 of the Act and passed sentence accordingly imposing a sentence of imprisonment for 9 months each and a fine of Rs.10,000/- each against all the respondents with a default sentence of one month each in case of non-payment of fine. It is this order, which is under challenge herein. It is this order, which is under challenge herein. Before considering the merits of the impugned order, it should be made clear that the order of the learned I Additional District and Sessions Judge, Guntur, in Crl.M.P.No.101 of 2009 in D.V.A.No.78 of 2009 dated 09.04.2009 either has admittedly become final in the absence of any challenge to the same by either party or is atleast not the subject matter of challenge herein and therefore, the question herein is only the legality of the manner in which the said order is sought to be implemented by the learned Magistrate. What all the learned Sessions Judge directed the learned Magistrate to do, while presuming an offence under Section 31 of the Act to have been committed by the respondents before him, is to follow the procedure prescribed under the various provisions of the Act and to pass appropriate orders expeditiously, but not giving any liberty to the learned Magistrate to travel beyond the Statute or the Rules framed there under or taking away or restricting the jurisdiction of the learned Magistrate to judicially and judiciously determine the guilt or otherwise of any person in respect of an offence punishable under Section 31 (1) of the Act. The order of the learned Sessions Judge cannot be to the contrary effect or convey any contrary impression as then it would amount to exercising a jurisdiction not vested in the learned Sessions Judge but vested in the learned Magistrate. Assuming that an offence within the scope of Section 31 of the Act has been committed by any person, which makes him liable for the punishment under Section 31 (1) of the Act, such punishment shall be imposed on such violators only in accordance with sub-Sections 2 and 3 of Section 31 of the Act. Sub-Section 2 of Section 31 of the Act mandates that the Magistrate, who passed the order, the breach of which has been alleged to have been caused by the accused, should try the offence under sub-Section (1) as far as practicable, necessarily implying that a trial for an offence is contemplated. Sub-Section 2 of Section 31 of the Act mandates that the Magistrate, who passed the order, the breach of which has been alleged to have been caused by the accused, should try the offence under sub-Section (1) as far as practicable, necessarily implying that a trial for an offence is contemplated. Sub-Section 3 thereof enables the Magistrate to frame charges under Section 498-A of the Indian Penal Code or any other provisions of the Indian Penal Code (for short ‘I.P.C.’) or the Dowry Prohibition Act, if the facts disclose the commission of such offences, while framing charges under sub-Section (1) of Section 31 of the Act, obviously implying that framing of charges is necessary for complying with the procedure prescribed by the provisions before imposing any penalty for breach of protection order under Section 31 of the Act. Rule 15 of the Protection of Women from Domestic Violence Rules, 2006, (for short ‘the Rules’), further details the procedure to be followed in respect of breach of protection orders. Sub-rule (6) thereof provides that if charges are framed under Section 31 of the Act or in respect of Section 498-A of I.P.C. or any other offence not summarily triable, the court may separate the proceedings for such offences to be tried in the manner prescribed under the Code of Criminal Procedure, 1973, and proceed to summarily try the offence of breach of protection order under Section 31 of the Act in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973. Sub-rule (9) also provides for enlarging a person arrested under the Act on bail, may be subject to the conditions enumerated in the sub-rule. A reading together of Section 31 of the Act and Rule 15 of the Rules thus, makes it clear that in case of breach of a protection order, final or interim, it may amount to an offence under Section 31 of the Act. The Magistrate has to proceed to try the offence under Section 31 of the Act in accordance with Sub-Sections (2) and (3) of Section 31 of the Act and Rule 15 read with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973. The Magistrate has to proceed to try the offence under Section 31 of the Act in accordance with Sub-Sections (2) and (3) of Section 31 of the Act and Rule 15 read with the provisions of Chapter XXI of the Code of Criminal Procedure, 1973. Section 32 (1) of the Act and sub-rules 1 to 5 and 8 of Rule 15 also indicate the manner in which the cognizable and non-bailable offence under Section 31 (1) of the Act has to be reported and acted upon. As breach of a protection order or of an interim protection order is made an offence with serious penal consequences, strict compliance with the letter and spirit of Sections 31 and 32 of the Act and Rule 15, in tune with the fundamental principles of Judicial procedure and natural Justice, is mandatory and inviolable. The impugned order obviously was passed in utter disregard of the mandatory procedure prescribed by Sections 31 and 32 of the Act and Rule 15 of the Rules and has to be set aside. The matter has to be remitted back to the trial Court for proceeding further in accordance with law leaving open the merits of the questions in controversy to be decided by the trial Court after giving every reasonable opportunity to both the parties in accordance with the prescribed procedure. Therefore, the order in Crl.M.P.No.1378 of 2009 in D.V.C.No.5 of 2007 dated 13.04.2009 of the Additional Junior Civil Judge, Ponnur, is set aside and the matter is remitted back to the trial Court for consideration and determination in accordance with law on merits after giving every reasonable opportunity to both the parties and in view of the need for an expeditious determination of the matter, the trial Court shall make every endeavour to dispose of the matter as expeditiously as possible, at any rate not later than three months from the date of communication of this order to the trial Court. The criminal petitions are ordered accordingly.