Case Note & Summary
The applicant wife filed three revision applications under Section 401 of the Code of Criminal Procedure, 1973, challenging the order of the Sessions Court at Mumbai in Criminal Appeal No.880 of 2015, which arose from the order of the Metropolitan Magistrate, 73rd Court, Vikhroli, Mumbai. The wife had obtained interim protection orders under the Domestic Violence Act, 2005, on 17th September 2013 and 12th January 2014. She alleged that the respondents disobeyed these orders and filed three applications (Exhibits 26, 28, and 35) before the Magistrate seeking action for non-compliance. Exhibit 26, filed on 4th December 2013, sought protection and reiterated dispossession from the flat. Exhibit 28 sought contempt action against respondent no.2. Exhibit 35, filed on 11th August 2014, prayed for taking cognizance of offences under Section 156(3) CrPC. The Magistrate, after hearing counsel, noted Section 31 of the DV Act which makes breach of protection order an offence, but did not take cognizance. The Sessions Court upheld the Magistrate's order. The High Court considered whether the Magistrate was justified in not taking cognizance. The court held that the breach of a protection order under Section 31 of the DV Act is a cognizable offence, and the Magistrate must take cognizance and proceed accordingly. The court also held that the order refusing to take cognizance is not an interlocutory order, and revision is maintainable under Section 397 CrPC. The High Court allowed the revision applications, set aside the orders of the courts below, and directed the Magistrate to take cognizance of the breach and proceed in accordance with law.
Headnote
A) Criminal Procedure Code - Revision - Maintainability - Section 397 CrPC - Order refusing to take cognizance of breach of protection order under DV Act is an interlocutory order? - Held that such order is not interlocutory and revision is maintainable as it decides substantive rights of the parties (Paras 1-5).
B) Domestic Violence - Breach of Protection Order - Section 31, Domestic Violence Act, 2005 - Cognizable Offence - Magistrate's duty to take cognizance - Held that breach of protection order is an offence under Section 31 and the Magistrate must proceed in accordance with law, not dismiss applications without proper inquiry (Paras 2-4).
Issue of Consideration
Whether the Magistrate was justified in not taking cognizance of the breach of protection order under Section 31 of the Domestic Violence Act, 2005, and whether the Revision Applications are maintainable against such order.
Final Decision
The High Court allowed the three Revision Applications, set aside the orders of the Sessions Court and the Magistrate, and directed the Metropolitan Magistrate, 73rd Court, Vikhroli, Mumbai, to take cognizance of the breach of protection order under Section 31 of the Domestic Violence Act, 2005, and proceed in accordance with law.
Law Points
- Breach of protection order under Section 31 of Domestic Violence Act is a cognizable offence
- Magistrate must take cognizance and proceed accordingly
- Revision lies under Section 397 CrPC against order refusing to take cognizance
Case Details
2018 LawText (BOM) (09) 63
Criminal Revision Application No.221 of 2018 with Criminal Revision Application No.222 of 2018 with Criminal Revision Application No.223 of 2018
Smt. Bharati H. Dangre, J
Mr. Rajan V. Thakkar for the applicant, Mr. S.P. Kadam I/b Mr. Omkar Gopal Nagwekar for respondent nos.1 to 4, Ms. P.P. Shinde, APP for the State
Meera Somil Lodaya @ Meera Chandrakant Thakkar
Somil Hirji Lodaya and ors
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Nature of Litigation
Criminal Revision Applications against order of Sessions Court upholding Magistrate's refusal to take cognizance of breach of protection order under Domestic Violence Act.
Remedy Sought
The applicant wife sought setting aside of the orders of the Magistrate and Sessions Court and direction to take cognizance of the breach of protection order.
Filing Reason
The wife alleged that the respondents disobeyed interim protection orders dated 17th September 2013 and 12th January 2014 passed under the Domestic Violence Act.
Previous Decisions
The Metropolitan Magistrate, 73rd Court, Vikhroli, Mumbai, refused to take cognizance of the breach. The Sessions Court at Mumbai in Criminal Appeal No.880 of 2015 upheld that order.
Issues
Whether the Magistrate was justified in not taking cognizance of the breach of protection order under Section 31 of the Domestic Violence Act, 2005?
Whether the Revision Applications are maintainable against the order refusing to take cognizance?
Submissions/Arguments
The applicant argued that the breach of protection order is an offence under Section 31 of the DV Act and the Magistrate ought to have taken cognizance.
The respondents likely argued that the order was interlocutory and revision not maintainable, but the judgment does not detail their arguments.
Ratio Decidendi
Breach of a protection order under Section 31 of the Domestic Violence Act, 2005, is a cognizable offence, and the Magistrate must take cognizance of such breach and proceed in accordance with law. An order refusing to take cognizance is not an interlocutory order and is subject to revision under Section 397 CrPC.
Judgment Excerpts
On perusal of section 31, it transpires that this clause provides that the breach of protection order or an interim protection order shall be an offence...
The learned Magistrate observes thus : 'On perusal of section 31, it transpires that this clause provides that the breach of protection order or an interim protection order shall be an...'
Procedural History
The applicant wife obtained interim protection orders on 17th September 2013 and 12th January 2014 from the Metropolitan Magistrate, 73rd Court, Vikhroli, Mumbai. She filed three applications (Exhibits 26, 28, 35) alleging breach of these orders. The Magistrate refused to take cognizance. The wife appealed to the Sessions Court at Mumbai in Criminal Appeal No.880 of 2015, which upheld the Magistrate's order. The wife then filed three Criminal Revision Applications (Nos.221, 222, 223 of 2018) before the Bombay High Court.
Acts & Sections
- Code of Criminal Procedure, 1973: 401, 397, 156(3)
- Protection of Women from Domestic Violence Act, 2005: 31
