Impugned
Provision / other Anomaly
|
Breach of
Section / Article
|
Sections 31 and 32 of the impugned Act
|
Article 21 of the Constitution of India
|
SECTION 31: Penalty for breach of protection order by respondent
(1) A breach of protection order,
or of any 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-sec.
(1) shall as far as practicable be tried by the Magistrate who had passed the
order, the breach of which has been alleged to have been caused by the accused.
(3)
While framing charges under sub-sec. (1), the Magistrate may also frame charges
under Sec. 498-A of the Indian Penal Code, 1860 (45 of 1860) or any other
provision of that 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.
SECTION 32
: Cognizance and proof
(1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974) the offence under
sub-sec. (1) of Sec. 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the
aggrieved person, the Court may conclude that an offence under sub-sec. (1) of
Sec. 31 has been committed by the accused.
Article 21: Protection of life and personal
liberty
No person shall be deprived of his
life or personal liberty except according to procedure established by law.
The Argument
1.
The bare reading of the mandate contained in sections
31 and 32 of the impugned Act, is appalling and would shock the conscience of
any prudent man.
2.
Section 31 mandates that Breach of protection Order or
interim protection Order, passed would constitute a Criminal offence, is a
phenomenon unheard of in any jurisprudence.
3.
Even in the Contempt of Courts Act, 1971, the law does
not regard the alleged acts of breach of the Order of the Court, as a Criminal
offence, and is judicially ascertained as quasi criminal offence, and is tried
as such, wherein the alleged contemnor may even tender an unconditional apology
to the High Court and the Court may discharge the contemnor. Further, it is a
Public Policy of India that lower courts do not have a power to punish for
breach of their Orders, and such prerogative jurisdiction is conferred upon the
Higher Courts only, the High Courts and Supreme Court.
4.
Further, whereas the expression “domestic violence”
itself is inherently and characteristically vague and ambiguous, as argued
hitherto, any Order passed, thereby prohibiting the Respondent from committing
any further “domestic violence”, would also be vague and ambiguous. The
Respondent may be left to ponder “what to comply with”; The Respondent may be
left wondering how he should organize his conduct so as to comply with the
Order of the Court.
5.
Nevertheless, given the patently ambiguous nature of
Order which would be passed, the aggrieved person can always allege that the
Order of the Court is not complied with; and the Respondent thereby makes him
subject to criminal prosecution for non-compliance of the Order of the Court.
6.
As
argued earlier in respect of the inherent ambiguities in definition of the
expression domestic violence, the Order, any passed u/s 18, inter alia, thereby
restraining the Respondents from committing acts of “domestic violence”, would
continue to be perplexing for the Respondents, for, the Applicant, like the
original complaint u/s 12, can always allege the breach of the Orders of the
Court u/s 31, without stating any material facts, constituting the breach of
the Order of the Court.
7.
“Notice” is a sine qua non in any criminal offence. It
would never be known to the Respondent as what kind of conduct or behaviour is
expected from him / her; or to say, what kinds of acts should be omitted to be
done, so as to avoid the rigour of “domestic violence”. In fact, every act and
omission of the person may be conveniently labelled as “domestic violence”, and
so is the breach of the Order of the Court.
8.
Most shockingly, whereas the alleged breach of the
protection Order is made a criminal offence, the impugned section obviates the
necessity of the concerned Magistrate to satisfy himself as to the truthfulness
of the allegation of breach of Order, and the law contemplate that the solemn
words, are flowing from the Applicant / Protection officer. It is submitted
that even in the Contempt of Courts Act, the High Court, before subjecting the
alleged contemnor to the rigours of contempt proceeding, satisfy itself to the
veracity of the allegation made in the contempt petition.
9.
And further jeopardizing the life and liberty of the
Respondent, the mandate of section 32 would shock our sense of justice, where
the non-compliance to Orders passed under this Act is made a Non bailable
offence, which is irrational, disproportionate and excessive. It may be noted
that offences of Rioting (S.147 IPC), causing death by rash or negligent act
(S.304A IPC),, voluntary causing grievous hurt (S.325 IPC), Criminal
intimidation (S.506 IPC), Forgery (S.465 IPC), Criminal trespass (S.447 IPC),
Mischief (S.426 to 435 and 440 IPC), Cheating (S.417, 418, 419 IPC) are a
Bailable offence.
10.
Whereas
Section 32(2) empowers the Magistrate to conclude the guilt of the Accused on
the sole testimony of the Applicant, the mandate is inconsistent with
Explanation II appended to Section 3 of the impugned Act mandates that for the
purpose of determining whether any act, omission, commission or conduct of the
respondent constitutes "domestic violence" under this section, the
overall facts and circumstances of the case shall be taken into consideration.
11.
There is
one more serious infirmity in the mandate of law contained in section 31
wherein provides it provides that the breach of the protection Order shall be
an offence under the impugned Act.
a)
Any inquiry into the alleged commission of an offence
must begin with the contemplation in our mind, the definition of “offence” as
contained in General Clauses Act, 1897.
b)
Section 3(38) of the said Act defines it as
"offence" shall mean any “act or omission” made punishable by any law
for the time being in force”. The definition is quite simple to apt and does
not require any elaboration.
c)
The word “act or omission” is defined in the said Act
in section 3(2) as –"act", used with reference to an offence or a
civil wrong, shall include a series of acts, and words which refer to acts done
extend also to illegal omissions. This definition is also simple enough to apt,
with suffice to say, that “specific act and / or omissions” attributed towards
the person, would make the person liable for his alleged act and / or
omissions, and mere allegations, suspicion and speculation are of no use to
initiate any action in law, against any person.
d) It
is submitted that, therefore, in any case of allegation of commission of an
offence, the complainant has to assert and attribute certain acts and omissions
which are alleged to have been committed by the person, where those acts and
omissions constitute an offence under the law.
e)
Moving little further, the alleged acts and omissions
attributed towards any person, constitutes the material facts of the
prosecution case; and to bring home, the guilt of the person concerned, it is
suffice, if the existence of said material facts are “proved” by the
prosecution, while employing the principles spelled out in the Indian Evidence
Act, 1872, with the means of procedure, prescribed under code of criminal
procedure, 1973. The definition of
“facts”, “facts in issue”, “proved” disproved” and “not proved” in the Evidence
Act, assumes greatest significance in any trial.
f)
The Ld. Magistrate would thereafter, while taking
cognizance of the offence u/s 200 would prima facie satisfy him as to the
veracity of the said alleged “acts and omissions”, and then will issue Summons
/ Warrant against the accused person.
g)
The prosecution thereafter, is obliged to lead evidence
(of “facts in issue” and “relevant facts”) about the existence of the said acts
and omissions, and would be then subjected to the cross examination;
h)
And thereafter, after recording of Statement of the
Accused u/s 313 of CrPC, 1973, the accused may lead his evidence and subject
him for cross examination;
i)
And thereafter the Ld. Magistrate would record his
finding as to (a) whether the acts and omissions alleged, are proved; and (b)
whether the said proved acts and omissions, constitute the “ingredient” of the
offence charged with.
j)
Therefore, it may be noted that, (a) recording a
“finding” as to the proving of certain “acts and omissions” and (b) recoding a
finding that those proved “acts and omissions” constitutes “ingredient of the
offence”, is the prerogative of the Magistrate.
k)
The province of the Applicant is to allege acts and
omissions of the concerned Respondent, and it is absurd and unimaginable if the
Applicant would record a “finding” in his complaint that Respondent has
inflicted “hurt” or has “insulted” or has inflicted economic, sexual, emotional
or verbal abuse”. The Applicant has to state “acts and omissions” of the
Respondent which would constitute “hurt” “insult” economic, sexual, emotional
or verbal abuse” etc.
l)
In the instant case, as we have seen, there is no
warrant for the Applicant to set out any material facts constituting the act of
“domestic violence”. What is required under the impugned law is to allege the
nature of “domestic violence” being committed by the Respondent; and the
Reliefs sought from the Court. Even the Domestic Incident Report prepared by
the Protection officer in the prescribed Form I does not contemplate recording
of any facts in issue or relevant facts, constituting “domestic violence”.
m) It
is strange, how the Magistrate would ever proceed with the trial in the absence
of any material facts on record.
12.
Further,
the said provisions overlooks the fact that if at all the Respondent is sent to
judicial custody /jail for breach of protection Order, the maintenance Order if
any passed u/s 20 and / or the compensation Order, if any passed u/s 22,
against the Respondent may become futile, thereby frustrating the interest of
the aggrieved person.
13.
GRIMWOOD
MEARS, a High Court Judge in Allahabad High Court, in a introductory passage to
authoritative Mogha’s pleading , in the year 1926, said, which is even to a
great extent stand true, “ inter alia, I confess that when I came herein 1919,
nothing shocked me more than the abusive, irrelevant and reckless statements in
pleadings and failure of sub-ordinate judges to exercise any control over them.
Unfounded charges of fraud, intentional mis-statement, reckless justification,
failure to give particulars etc.
14. There
is no worse than the torture of laws.
Ambiguous penal laws are traps for extorting money. A good deal of
tyranny goes in the name of protection. At the most fundamental level, the
procedural due process embodies the importance of fair pre-deprivation
procedures; Liberty is too priceless, however, the impugned provisions makes
nonsense of the ordered liberty of the mankind, and offends sense of justice; A danger cannot be overstated.
15.
Article
21 of the Constitution of India commands that “No person shall be deprived of
his life and liberty” except according to the procedure established by law. In
Criminal jurisprudence, the only safeguard available to an innocent person is
the “scrupulous and strict adherence” to the procedure prescribed in concluding
the “guilt of the accused person”.
16.
The
proposition employed in sections 31 and 32 is mind blowing absurd and is
unheard of in the body of our jurisprudence. The said provision is extremely
callous and shamelessly mutilates the mandate of Article 21 of the Constitution
of India.
17.
It is
wondering how Parliament of` our Country can be oblivious to the patent
Constitutional dictates of Article 21 of the Constitution of India and how they
can provide and justify for such an absurd set of provisions.
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