IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 Crl.MC.No. 3355 of 2009() ------------------------- AGAINST THE ORDER DATED 20/03/2009 IN CMP.727/2009 IN MC.45/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... PETITIONER(S): RESPONDENTS -------------------------- 1. B.SAJEER, S/O.BHASKARAN, AGED 39 YEARS, EMPLOYED AT P.B.NO.16033,DUBAI, UAE, RESIDING AT THENGAVILA VEEDU, THONAKKAL, THIRUVANANTHAPURAM DISTRICT. 2. SANAL KUMAR,S/O.BHASKARAN, AGED 45, RESIDING AT THENGAVILA VEEDU,THONAKKAL, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.P.K.MUHAMMED RESPONDENT(S): --------------- 1. MAYA DEVI, D/O.SHAKKU BHAI, AGED 29 YEARS,RESIDING AT GANGOTHRI, KURIYATHIRI, MANACAUD,THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3355 OF 2009 ------------------------------------------ Dated 19th October 2009 O R D E R Petitioners are respondents in M.C.45/2009 on the file of Judicial First Class Magistrate-II, Thiruvananthapuram which was a petition filed by first respondent under Section 12 of Protection of Women from Domestic Violence Act, 2005. By Annexure-A2 order in C.M.P.727/2009 interim protection order was passed under Section 23 of the Act. By the said order petitioner was directed to pay Rs.5,000/- per month as interim maintenance from 20/3/2009, the date of the order. This petition is filed under Section 482 of Code of Criminal Procedure to set aside Annexure-A2 order. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel submitted that though as per the decision of this court in Chandrasekhara Pillai v. Valsala (2007 (2) KLT 36) it was found that powers under Section 482 of Code of Criminal CRMC 3355/09 2 procedure cannot be invoked when a right of appeal is available under Section 29 of the Protection of Women from Domestic Violence Act, as is clear from paragraph 5 of the decision, if court is satisfied that there are compelling reasons of exceptional variety, irrespective of alternative remedies, a petition under Section 482 of Code of Criminal Procedure is maintainable and as first petitioner was not in India and was not aware of the order within the period by which an appeal could be filed, the petition is to be entertained. Learned counsel also submitted that if, the petition is not maintainable, petitioner is prepared to file a statutory appeal and sufficient directions may be issued to protect the petitioner till an appeal is filed and the order is challenged. 4. This court in Chandrasekhara Pillai's case (supra) held that when a right of appeal under Section 29 of Protection of Women from Domestic Violence Act is available against an interim protection order passed under Section 23, extra ordinary power under Section 482 of Code of Criminal Procedure cannot be exercised. While, considering the question whether a petition under Section 482 would lie when alternative remedy is CRMC 3355/09 3 available, it was observed as general statement that though normally availability of an efficacious remedy is a bar for invoking extra ordinary powers under Section 482 of Code of Criminal Procedure, if the court is satisfied that there are compelling reasons of exceptional variety, court will choose to invoke the powers under Section 482 even when such alternative remedies are available. Fact that first petitioner is not in India at the time when the order was passed even if that fact is true, is not a ground to bye-pass statutory remedy provided under the Act, as appeal could have been filed by his brother, the second respondent in Annexure-A2 order. Personal presence of first petitioner is not necessary for filing an appeal. Hence when right of appeal is available under Section 29 of the Act, petitioner has to file the appeal and cannot to approach this court under Section 482 of Code of Criminal Procedure. If appeal is filed it is for the Sessions court to decide whether Annexure-A2 order is to be quashed or modified or to be confirmed. Petitioners are at liberty to file an appeal and raise all the contentions raised herein. If an appeal is filed and amount as CRMC 3355/09 4 provided under Annexure-A2 is deposited, learned Magistrate not to dispose the same before orders is passed by the Sessions Judge in the appeal or the petition to stay or suspend the order. M.SASIDHARAN NAMBIAR, JUDGE. uj.