IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Petition No.5587 of 2009 Between: Bandela Bhushana Rao .. Petitioner AND The State of Andhra Pradesh rep. by its Public Prosecutor, High Court of A.P., at Hyderabad and another .. Respondents Petition under Section 482 of Cr.P.C. praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash the order passed in Crl.M.P. No.612 of 2006 in M.C. No.85 of 2005, dated 26-05-2009 on the file of the Family Court-cum-IV Additional District and Sessions Court, Vijayawada. The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri V. Venugopala Rao, Advocate for the petitioner and of the Public Prosecutor for the 1st respondent and of Sri K.S. Murthy, Advocate for 2nd respondent, the Court made the following: ORDER: Heard Sri V. Venugopala Rao, learned counsel for the petitioner, Sri A. Ramesh, learned counsel representing the learned Public Prosecutor for the 1st respondent and Sri K.S. Murthy, learned counsel for the 2nd respondent. The order in question in this criminal petition was passed by the IV Additional District and Sessions Judge-cum-Judge, Family Court, Vijayawada on 26-05-2009 in Criminal M.P. No.612 of 2006 in M.C. No.85 of 2005. The petition was to make the petitioner herein and also the child, allegedly born due to the conjugal relationship between the petitioner herein and the 2nd respondent, submit themselves to a DNA test before Central Forensic Science Laboratory, Ramanthapur, Hyderabad. The application was allowed on hearing the learned counsel for the 2nd respondent herein before the trial Court and on verification of the contents of the petition, observing that the petitioner herein remained ex parte and did not file any counter, though given sufficient time. The grievance of the petitioner is that he had, in fact, opposed the petition, filed a counter in detail and also filed a memorandum of written arguments opposing the relief claimed, which were failed to be noticed by the trial Court. The petitioner, of course, also assails the impugned order on other grounds raised in the criminal petition. The learned counsel for both parties have fairly conceded the factual situation that the petitioner herein has filed a detailed counter and also a memorandum of written arguments before the trial Court, which were not noticed by the trial Court while passing the order ex parte against the petitioner herein. If that were so, the impugned order has to be nullified and the parties should be reverted back to the trial Court for placing their respective contentions before the said Court for a determination on merits in accordance with law. Accordingly, the order in Criminal M.P. No.612 of 2006 in M.C. No.85 of 2005 of the Judge, Family Court-cum-IV Additional District and Sessions Judge, Vijayawada, dated 26-05-2009, is set aside and the said Criminal M.P. No.612 of 2006 is remitted back to the said trial Court for fresh determination in accordance with law on merits after taking into consideration the rival pleadings and written or oral arguments of both the parties. The trial Court is requested to dispose of the said miscellaneous petition as expeditiously as possible, preferably within two months from the date of communication of this order. The criminal petition is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 20-08-2009 Svv