Criminal Liability U/S 31 Domestic Violence Act Arises Only When Protection Order U/S 12 To 23 Violated: Allahabad High Court
While dealing with application for quashing criminal proceedings under Section 31 of the Protection of Women from Domestic Violence Act, 2005, the Allahabad High Court has held that criminal proceedings under the Act can only be initiated if there is a breach in any conditions of the order passed in civil proceedings under Sections 12 to 23 of the Act.Justice Vinod Diwakar held that“in...
While dealing with application for quashing criminal proceedings under Section 31 of the Protection of Women from Domestic Violence Act, 2005, the Allahabad High Court has held that criminal proceedings under the Act can only be initiated if there is a breach in any conditions of the order passed in civil proceedings under Sections 12 to 23 of the Act.
Justice Vinod Diwakar held that
“in the absence of a prior protection order duly passed by the Magistrate, the police is not empowered per se to register an FIR under Section 31 of the Act. The procedural mandate of the Act requires that the process be initiated through the civil mechanism envisaged under Sections 12 to 23 of the Act, and only upon breach of such an order does criminal liability under Section 31 of the Act, 2005 arise.”
Applicants approached the High Court against an FIR registered under Section 31 of the Act on grounds that it was impermissible and a compromise had already been reached between the parties.
The inquired from the then ACJM, Rampur, as to what was the basis of taking cognizance of the case. In reply, it was stated that the police report was treated a complaint under Section 2(d) CrPC for taking cognizance.
Noting that the 2005 Act is a special legislation, the Court observed that it did not provide for registration for FIR unlike IPC where FIR can be registered for offences like assault, cruelty, criminal intimidation, or dowry-related harassment. It held that the only offence cognizable was the breach of a protection order granted under the DV Act.
The Court held that the aim of Section 31 was to deter the respondent from not following the protection order passed under the DV Act. It held that in absence of any order of protection, no order under Section 31 could be passed.
“Crucially, an offence under Section 31 arises only upon the violation of a “protection order” or “interim protection” order duly issued by the Magistrate. It is only such a breach that is treated as a cognizable offence under the Act. In the absence of such an order, no cognizable offence under Section 31 can be said to exist.”
The Court held that police report was not a complaint under the DV Act to take cognizance under Section 31 of the Act. Holding that the explanation given by the now Additional District and Sessions Judge, Ghaziabad is flawed, the warned him to exercise caution and mind in future judicial decisions.
Accordingly, the entire proceedings under Section 31 of DV Act were quashed.
While parting, the Court also observed,
“While this Court acknowledges the overburdened nature of Magistrates' Courts, had the learned Additional District and Sessions Judge's explanation been based on a simple mistake of fact or oversight, this Court would have refrained from issuing a detailed order. However, the erroneous explanation provided by a senior member of the District Judiciary necessitates a thorough review, thereby prompting this Court to pass the present detailed order.”
Case Title: Sattar Ahmad & 4 Ors v. State of U.P. and Another [APPLICATION U/S 482 No. - 35994 of 2024]