1 WP-2438-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2438 OF 2011 Abhijeet Dhondiba Sawant ..Petitioner Vs. Sou.Smita Abhijeet Sawant and anr. ..Respondents ­­ Mr.Dhananjay Rananaware, for petitioner. ­­ CORAM : R.G.KETKAR, J. DATE : 27 th SEPTEMBER, 2011 P.C.: Heard Mr.Dhananjay Rananaware, learned counsel for the petitioner. 2] This petition is directed against the order dated 2 nd July, 2011 passed by the learned Addl. Sessions Judge, Sangli below exhibit 5 in Criminal Appeal No.230 of 2011 as also order dated 5 th April, 2011 passed by the learned Judicial Magistrate F.C., Miraj below exhibits 1 and 5 in Criminal Misc. Application No.137 of 2011. 2 WP-2438-11.sxw 3] Mr.Rananaware strenuously contended that by order dated 5 th April, 2011, the learned Magistrate, without issuing any notice to the petitioner, directed the petitioner to pay ad­interim maintenance of Rs. 10,000/­ per month to the respondent till the appearance of the petitioner or till the report of Protection Officer is filed, whichever is earlier. The learned Magistrate further restrained the petitioner from selling, alienating and transferring Honda City four wheeler bearing registration No. MH­09­BM­8066 in any manner. 4] Aggrieved by this order, the petitioner preferred Criminal Appeal No.230 of 2011 in the Sessions Court, Sangli. However, by order dated 2 nd July, 2011, the learned Sessions Judge granted stay to the order dated 5 th April, 2011 on the condition that the petitioner shall go on depositing maintenance at the rate of Rs.5,000/­ per month on or before 10 th of each month, till further order 5] Mr.Rananaware states that no urgency was made out by the respondent which required passing of ex­parte order by the learned Magistrate on 5 th April, 2011. He further contended that the 3 WP-2438-11.sxw respondent is not legally wedded wife of the petitioner and therefore, there is no question of any domestic violence as contemplated under the Protection of Women from Domestic Violence Act, 2005. He further submitted that though no case is made out under that Act, learned Sessions Judge committed error in granting stay on the condition of the petitioner depositing maintenance at the rate of Rs. 5,000/­ per month. 6] I have considered the submissions made by the learned counsel for the petitioner. The respondent filed application on 5 th April, 2011 and on the same day, the learned Magistrate directed the petitioner to pay ad­interim maintenance of Rs.10,000/­ per month to the respondent till his appearance or till the report of the Protection Officer is filed, whichever is earlier. It is true that the learned Magistrate without issuing any notice to the petitioner granted ex­ parte ad­interim order on 5 th April, 2011. Against this order, admittedly, the petitioner has preferred Criminal Appeal No. 230 of 2011. The learned Addl. Sessions Judge granted conditional stay to the order dated 5 th April, 2011 and has issued notice to the respondent as to why the said order should not be confirmed till final 4 WP-2438-11.sxw hearing and decision of the Appeal. In paragraph 2 of the order, the learned Sessions Judge recorded that though the petitioner herein had appeared in the matter it is not clear as to whether he has filed his say or not. 7] The learned counsel for the petitioner stated that the petitioner has, so far, not filed his say and report of the Protection Officer is not filed before the Magistrate. The learned Sessions Judge has further recorded in paragraph 2 that the petitioner has produced xerox true copy of certificate of marriage wherein, it is stated that the petitioner married to one Shital Kisanrao Gavali on 11 th August, 2009. However, the learned Judge further recorded that these facts are yet to be brought on record. Considering the documents which were produced before the Magistrate, the learned Session Judge granted conditional stay. Perusal of order of the learned Sessions Judge also indicates that the appeal is still pending. In such circumstances, it is not possible to interfere with the order passed on 2 nd July, 2011. 8] The learned counsel for the petitioner strenuously contended that the proceedings before the learned Magistrate is to be stayed till 5 WP-2438-11.sxw the disposal of the Appeal. In my opinion, the petitioner would be at liberty to take out appropriate application before the learned Sessions Judge where appeal is still pending. It will be further open to the petitioner to apply for expeditious disposal of the appeal before the learned Sessions Judge. 9] In the light of above, no case is made out for interference under Article 227 of the Constitution of India particularly when the appeal is pending and conditional stay is granted by the learned Sessions Judge. It is also material to note that the learned Sessions Judge has directed the petitioner to deposit the amount of maintenance. Thus, the learned Sessions Judge has not directed the petitioner to pay the amount of maintenance to the respondent. It is also apparent from the order that the learned Sessions Judge has also not permitted the respondent to withdraw that amount. In these circumstances, no case is made out for interference. The petition fails and is accordingly dismissed. [R.G.KETKAR, J.]