IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 Crl.MC.No. 324 of 2008() ------------------------ AGAINST THE ORDER IN CRMP 64/08 IN MC.146/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... PETITIONER: -------------------- SEBASTIAN S/O. EASY AGED 37 YEARS, KOLLASSERY HOUSE, KONAM PALLURUTHY P.O., COCHIN - 6 BY ADV. SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE RESPONDENTS: ----------------------- 1. PUSHPY, W/O.ANTONY AGED 41 YEARS, CC XXI/269A, M.A.MATHEW ROAD, PALLURUTHY P.O., COCHIN - 682 006. 2. ANTONY, S/O.EASY AGED 49 YEARS, KOLLASSERY HOUSE, KONAM, PALLURUTHY P.O., COCHIN - 6. 3. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.324 of 2008 = = = = = = = = = = = = = = Dated this the 23rd day of January, 2008 ORDER The petitioner herein, who was subsequently impleaded as the 2nd respondent in Crl.M.C.No.146/2007 filed by the 1st respondent herein under Section 12 of the Protection of Women from Domestic Violence Act, 2005, filed Annexure G petition registered as Crl.M.P.No.64/2008 before the J.F.C.M-II, Kochi seeking a direction to give vacant possession of the building in question to the petitioner herein and to take appropriate penal action against the fraud allegedly played on the Magistrate by the 1st respondent herein who was the petitioner in Crl.M.C.No.146/07. As per Annexure H petition, the petitioner herein wanted the Magistrate to consider the maintainability of Crl.M.C.No.146/2007 as a preliminary issue, before going into the merits of the case. 2. The question as to whether the 1st respondent herein was or ws not having possession of the building in question and whether he came into possession only by way of trespass into the property during the night hours by 10 p.m., as alleged by the Crl.M.C.No.324 of 2008 2 petitioner, is a matter for evidence and the learned Magistrate cannot consider the maintainability of Crl.M.C.No.146/2007 as a preliminary issue. The question of the maintainability of the petition can be considered only after conducting the enquiry. Hence the prayer of the petitioner cannot be granted. He can urge for an early disposal of Crl.M.C.No.146/2007 before the learned Magistrate. This Crl.M.C is disposed of as above. V. RAMKUMAR, JUDGE sj