1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Miscellaneous Application (C482) No. 64 of 2011 Bhuvan Dua S/o Late Shri Jagdish Dua R/o Maharani Bagh, District Dehradun …..…Petitioner Versus 1. State of Uttarakhand 2. Smt. Mohita W/o Shri Bhuvan Dua R/o 33, Racecourse, District Dehradun ……….Respondents Mr. Vinod Sharma, Advocate, present for the petitioner. Mrs. Mamta Bisht, A.G.A., present for the State. Mr. Atul Bahuguna, Advocate, present for the respondent no. 2. Hon'ble Prafulla C. Pant, J. Heard. 2. By means of this petition moved under section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) the petitioner has challenged the order dated 7.09.2010, passed by additional District & Sessions Judge/ VI Fast Track Court, Dehradun, in Criminal Appeal No. 80 of 2010, whereby said court has allowed the appeal, and directed the 2 present petitioner to deliver the custody of minor child Km. Ashmita to her mother (respondent no. 2 Mohita Dua). 3. Brief facts of the case are that the present petitioner Bhuvan Dua got married to respondent no. 2 Mohita Dua on 28.05.2006, at Dehradun. A daughter named Ashmita born out of the wed-lock on 07.08.2007. It appears that thereafter relations between parties to matrimony got soured. Respondent no. 2 Mohita moved an application under Protection of Women from Domestic Violence Act, 2005, before the Special Judicial Magistrate (CBI) Dehradun, claiming maintenance from her husband Bhuvan Dua. She also prayed interim custody of her child who was living with the father (present petitioner). The Magistrate after hearing the parties passed order dated 24.07.2010, directing the present petitioner to pay maintenance at the rate of ` 2000 per month to the respondent no. 2. However, the Magistrate directed that as to the custody of child, the respondent no. 2 can move to the competent court/family court for the relief. Aggrieved by said order dated 24.07.2010, passed in criminal case no. 5849 of 2010, respondent no. 2 3 preferred appeal (criminal appeal no. 80 of 2010) under section 29 of Protection of Women from Domestic Violence Act, 2005. The appellate court allowed the appeal, and directed that custody of child should be given to the mother (present respondent no. 2). Hence this petition. 4. Learned counsel for the petitioner submitted that neither any notice was issued to the present petitioner, nor he was heard before the appeal was allowed. On the other hand, learned counsel for the respondent no.2 drew attention of this Court to section 21 of Protection of Women from Domestic Violence Act, 2005, and submitted that since the Magistrate had committed grave error of law in not exercising powers under said section as such, the order passed by the appellate court suffers from no illegality. 5. I agree with learned counsel for the petitioner that before impugned order was passed by the appellate court, notice should have been given to the petitioner. On going through the impugned order passed by the appellate court it is not clear whether the notices were sent to the 4 present petitioner by the appellate court or not. The appellate court has simply mentioned that it heard the appellant and the State counsel. It is not mentioned as to whether the present petitioner (who was respondent before the appellate court) was absent even after service of notice or not. As such, the approach of the appellate court cannot be appreciated, and the matter could have been remanded to the appellate court for fresh decision. However, in the exercise of powers under section 482 Cr.P.C., the court has to exercise the same to secure the ends of justice. Since, the order of the Magistrate simply directing the respondent no. 2 to obtain orders from family court for getting custody of child is erroneous in law as it appears to have been passed ignoring the powers conferred on the Magistrate under section 21 of Protection of Women from Domestic Violence Act, 2005, relating to granting temporary custody of child, this Court is not inclined to interfere with the order of the appellate court which has rectified said mistake as such the direction issued by the appellate court, needs no interference. However, it has been brought to the notice of this Court that during pendency of this petition Family Court, Dehradun, 5 has passed order dated 30.07.2011, relating to custody of child in Hindu Marriage Petition No. 491 of 2010. 6. Therefore, this petition under section 482 Cr.P.C., is disposed of with the observation that impugned order dated 07.09.2010, passed by Additional District & Sessions Judge/ VI Fast Track Court, Dehradun, in Criminal Appeal No. 80 of 2010, needs no interference but same shall be subject to the decision of order passed by the Family Court in the matter. (Prafulla C. Pant, J.) Parul 10.10.2011