IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 28TH DECEMBER 2010 / 7TH POUSHA 1932 Crl.MC.No. 5097 of 2010() ------------------------- MC.12/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER: --------------- ALPHONSA.V.L. W/O.RAJU A.L., AINIKAL HOUSE EAST FORT, LOURDEPURAM PO THRISSUR – 5 BY ADV. SMT.SHERLY THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 2. RAJU A.L. AINIKKAL HOUSE P O LOURDEPURAM EAST FORT,THRISSUR-5 R1 BY SMT.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. --------------------------------------- CRL.M.C. No.5097 of 2010 --------------------------------------- Dated 28th December 2010 Order In this petition under Section 482 of the Code of Criminal Procedure, the petitioner seeks to have the order dated 30.10.2010 in MC No.12/08 before the Judicial First Class Magistrate Court-I, Thrissur, stayed till the disposal of the appeal pending before the Sessions Court, Thrissur. 2. Proceedings were initiated by the petitioner under the D.V.Act and the trial court, after an elaborate consideration of the materials before it, passed the following order : “On the basis of the above discussion, the petitioner is entitled for a protection order and also for monetary relief and maintenance from the respondent. So the points are found in favour of the petitioners. In the result, the petition is allowed in part in the following terms : CRL.M.C.No.5097/10 2 a) The respondent is hereby restrained from committing any acts of domestic violence or aiding or abetting in the commission of acts of any domestic violence against the petitioner. b) The petitioner is permitted to procure an alternate suitable accommodation and the respondent shall pay a sum of Rs.25,000/- towards advance rent deposit and shall also pay monthly rent of Rs.2,500/- for the rented house. He is also liable to pay 10% increase in the monthly rent in every two years or the actual rent paid, whichever is less. c) The respondent shall pay sum of Rs.50,000/- to the petitioner as expense for setting up necessary infra structure in the rented house. d) The respondent shall pay a sum of Rs.2,000/- as monthly maintenance to the petitioner from the date of petition (3.6.2008). The amount if any paid, by virtue of order dated 23.2.2010 in Crl.M.P.No.264/10 and as per the order of the Family Court under section 125 Cr.P.C. will be adjusted towards the amount payable as per this order. CRL.M.C.No.5097/10 3 e. The petitioner shall vacate house No.17/377, in which she was put in possession by virtue of order dated 23.2.2010 within two months from today. f. The Sub Inspector of Police, Thrissur Town East and the Protection Officer, Thrissur shall see that this order is implemented and shall render all necessary help to the petitioner in enjoying the benefits granted by this order. g. Copy of this order shall be sent to the Sub Inspector of Police, Thrissur Town East and Protection Officer, Thrissur for necessary action. h. Copy of this order shall be given to the petitioners and the respondent free of cost.” 3. According to the petitioner, being aggrieved by the said order, she has preferred an appeal before the Sessions Court, Thrissur as Crl.A.No.751/10. She would also state that she had moved an application for stay before the said court and that has not been taken up so far. In fact, according to the petitioner, the appeal and the petition stand posted to 29.01.2011. According to the CRL.M.C.No.5097/10 4 petitioner, going by the order of the trial court, she has to vacate the house on or before 31.12.2010. She would also say that the lower appellate court ought not to have adjourned the case to 29.01.2011 and should have dealt with the interlocutory application at the earliest. She also points out that the non-consideration of the interlocutory application may cause considerable prejudice to her and she may have to suffer irreparable loss and injury. 4. At the time of hearing, it is submitted that advance petition was, in fact, moved before the court below to have the matter heard at an early date. But, the court below posted the petition to a future date. It may at once be noticed that even though this submission is made, there is no mention about the same in the petition before this court. There is nothing to indicate that there was any attempt from the side of the petitioner to have the matter heard at an early date, as contended by the petitioner. Whatever that be, considering the facts and circumstances of the case, it is felt that a direction needs to be given to the court below CRL.M.C.No.5097/10 5 to take up the matter if an advance petition is filed or is already pending. In the result, it is ordered that in case the petitioner moves an advance petition on 29.12.2010 or if she files a memo indicating that an advance petition is pending and that it may be taken up, the Sessions Court, Thrissur shall take up Cr.A. No.751/10 and the interlocutory application said to have been filed before the said court and pass appropriate orders on the I.A. in accordance with law at the earliest. This order shall be communicated telephonically to the lower appellate court by the registry. Issue copy today itself. P.BHAVADASAN, JUDGE sta CRL.M.C.No.5097/10 6