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2015 DIGILAW 1220 (KAR)

SHAILESH KUMAR v. NISHA S. KUMAR

2015-11-02

A.V.CHANDRASHEKARA

body2015
ORDER : A.V. CHANDRASHEKARA, J. 1. Heard the learned Counsel for the petitioner. Perused the impugned order dated 12.6.2015 passed against this petitioner by the III JMFC Court, Mangalore, in P.C. 100/15, a case registered for breach of interim protection order passed by the said Court. It is the case of the respondent-complainant that the petitioner herein has not complied with the interim order of interim protection issued in her favour by the III Court as per the provisions of Protection of Women from Domestic Violence Act, 2005. After recording the sworn statement, the learned Judge has passed an order about the existence of a prima facie case. 2. When a private complaint is taken up for taking cognizance, a roving inquiry need not be conducted. In the present case, the learned Judge has passed a detailed order adverting to the various documents placed on record to hold that there is a case for issuance of summons. 3. What is argued by the learned Counsel for the petitioner is that the respondent has been virtually harassing the petitioner in one form or the other without entering the witness box in M.C. 19/11. In that event, the learned Judge will have to pass appropriate orders against those persons who do not cooperate with the Court in conducting the case. Learned Counsel for the petitioner has argued that this is a case in which maximum sentence of imprisonment could extend up to one year and a fine of Rs. 20,000 and therefore a summary procedure has to be adopted by the Court. This Court is unable to accept the contention in view of the provisions contained in Sub-section (3) of Section 31 of the said Act. For better clarification the entire provision of Section 31 of the Act is extracted below: “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 has passed the order, the breach of which has been alleged to have been caused by the accused. (2) The offence under Sub-section (1) shall as far as practicable be tried by the Magistrate who has 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 the 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.” Even if we were to accept that a summary procedure would be adopted, the Court will have to frame charges for breach of the interim protection order passed in terms of Section 31 of the Act. This is a special statute and naturally Sub-section (3) would override the other cognate provisions found in the Code of Criminal Procedure. Nothing comes in the way of the review petitioner to make necessary application for discharge in which event, the learned Judge to pass appropriate orders without being influenced by the order of taking cognizance.