IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.MC.No. 2096 of 2009() ----------------------------------- CRIME NO.367/2008 OF S.H.O. KUMBLA POLICE STATION, KASARAGOD. .................... PETITIONERS/ACCUED --------------------------------- 1. ABDUL SAMAD,S/O. MAHMOOD HAJI, DARUL FALA,PERINGADI, P.O. UPPALA, KASARAGOD. 2. MAHMOOD HAJI, -DO- 3. ZUBAIDA,W/O. MAHMOOD HAJI, -DO- 4. IRSHAD, S/O. MAHMOOD HAJI, -DO- 5. MUMTHAZ, W/O. ABDULKADER,RESIDING NEAR KOVADA MASJID, P.O. MANJESHWAR, KASARAGOD. 6. MAIMOONA,W/O. K.P. IBRAHIM, NEAR PETROL PUMP, PERVAD, MOGRAL, KUMBLA, KASARAGOD. BY ADV. MR.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT/STATE & COMPLAINANT --------------------------------------------------------- 1. STATE,SHO KUMBLA POLCIE STATION KASARAGOD DISTRICT (CRIME NO.367/2008) REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. HAJIRATH FOUSIYA, D/O.MOHAMMED K., W/O.ABDUL SAMAD,RESIDING AT BISMILLAH MANZIL, MALANDOOR, P.O. ICHILANGOD, MANGALPADY, KASARAGOD DISTRICT. R1 BY PUBLIC PROSECUTOR MR.B. VINOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2096 of 2009 -------------------------- ORDER Petitioners are the accused in Crime No.367/ 2008 of Kumbla Police Station, registered for offences under Sections 408 and 498A read with Section 149 of Indian Penal Code under Annexure-II FIR on Annexure-I complaint sent to the police by Chief Judicial Magistrate, Kasargod for investigation under Section 156(3) of Code of Criminal Procedure. After registration of the case, second respondent filed Annexure-III complaint, which was taken cognizance by Chief Judicial Magistrate as Crl.M.P.No.1017/2009 under Section 12 of Protection of Women from Domestic Violence Act (hereinafter referred to as 'the Act'). This petition is filed under Section 482 of Code of Criminal Procedure contending that when in a proceeding under Section 498A of Indian Penal Code provisions of the Act could be invoked, CRMC 2096/09 2 continuation of a separate proceedings is an abuse of process of the court and is to be quashed. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that in view of Section 26 of the Act, any relief available to the second respondent under Sections 18, 19, 20, 21 and 22 could also be claimed in a pending proceedings effecting the second respondent and in such circumstances, the independent proceedings under Section 12 of the Act is an abuse of process of the court. 4. Though Section 26 enables an aggrieved person to claim the reliefs available under Sections 18, 19, 20, 21 and 22, in a proceedings pending before Sessions Court or Family Court or Criminal Court does not mean that there is a bar for claiming the relief by separate proceedings under the Act. That is not the case. In view of Section 26, it cannot be said that an independent CRMC 2096/09 3 proceedings under Section 12 of the Act cannot be initiated. Therefore, on that ground, proceedings pending before learned Magistrate under Annexure- III complaint cannot be quashed. 5. Learned counsel appearing for the petitioners then submitted that respondent is defined under Section 2(q) of the Act and only a male person could the respondent and therefore, proceedings as against petitioners 3, 5 and 6, who are women, is not maintainable. Reliance was placed on the decision of the Andhra Pradesh High Court in Menakuru Renuka v. Menakuru Mona Reddy (2009 (2) KLD 223). 6. On hearing the learned counsel, I do not find it necessary for this Court to invoke the extraordinary inherent jurisdiction under Section 482 of Code of Criminal Procedure to quash the proceedings based on the submission that some of the petitioners will not be the respondents as defined under the Act. Petitioners are entitled to CRMC 2096/09 4 challenge the maintainability of the very petition before the Magistrate either on the ground that complainant is not an aggrieved person or that respondents cannot be the respondents as defined under the Act or that there is no domestic violence. Petitioners are also entitled to file an application before the Magistrate to decide this point as a preliminary issue and get an order, which can be challenged before the appropriate court. With liberty to move the Magistrate for appropriate relief, petition is dismissed. 11th August, 2009 (M.Sasidharan Nambiar, Judge) tkv