IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Crl.MC.No. 4171 of 2008() ------------------------- AGAINST THE ORDER DATED 02/05/2007 IN ORDER IN MC.4/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... PETITIONER(S): ACCUSED --------------- 1. KUNJATHIRI, AGED 79 YEARS, W/O.LATE VARGHESE, KOOTHUR HOUSE, PORKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 2. SHYLA TAHNKARAJ, AGED 43, W/O.THANKARAJ, THOLATH HOUSE, PORKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, THRISSUR. 2. SHEEJA PRINSON, AGED 33 YEARS, W/O.PRINSON, KOOTHUR HOUSE, PORKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.4171 of 2008 ------------------------------------- Dated this the 4th day of November, 2008 ORDER Petitioners are respondents in a petition filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the `D.V.A'). The 1st petitioner is the mother in law and the 2nd petitioner is the sister in law of the 2nd respondent herein, ie. the complainant/petitioner in the petition before the learned Magistrate. In that application, an interim application was filed under Section 23 of the D.V.A and exparte interim directions were issued. That order was passed on 02.05.2007. The petitioners did not then want to take any objections against that order passed. But the manner in which that order is now being exploited by the 2nd respondent herein obliges the petitioners to challenge that order. 2. The impugned order is an appealable order under Section 29 of the D.V.A. It has been held clearly in Chandrasekhara Pillai v. Valsala Chandran [2007 (2) KLT 36] that an exparte order passed under Section 23 of the D.V.A is appealable. In these circumstances, I am not persuaded to agree Crl.M.C. No.4171 of 2008 2 that the challenge raised against the impugned order, which is an appealable order, deserves to be considered by this Court by invoking the powers under Section 482 Cr.P.C, whatever be the nature of the challenge raised. 3. The learned counsel for the petitioners submits that the petitioners are at a disadvantageous situation now. They have not challenged the order in time and in these circumstances their appeal may not be considered by the appellate court. 4. The petitioners can certainly show to the appellate court the reasons which prompted them not to prefer an appeal earlier and the circumstances which oblige them to file an appeal now. Their application for condonation of delay must certainly be considered by the appellate court on merits, in accordance with law and expeditiously. 5. The learned counsel for the petitioners further submits that the petitioners apprehend prosecution under Sections 31 and 32 of the D.V.A. Surprisingly the counsel submits that the petitioners apprehend, in view of the provisions of Section 32(2) of the D.V.A that without giving them an opportunity to be heard, acting solely on the testimony of the aggrieved person, they may be found guilty convicted and Crl.M.C. No.4171 of 2008 3 sentenced by the learned Magistrate. To say the least, I reckon the said apprehension as preposterous and puerile. The law does not contemplate a procedure whereby the indictee can be found guilty, convicted and sentenced on the sole testimony of the aggrieved person without giving the indictee an opportunity to defend himself and disprove the allegations raised against him. I have no reason to assume that any Magistrate would embark on that pernicious course. 6. This Crl.M.C is, in these circumstances, dismissed with the above observations. (R.BASANT, JUDGE) rtr/-