IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 Crl.MC.No. 210 of 2010() ---------------------------------- CMP 4846/2009 IN MC.146/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, HOSDRUG. .................... PETITIONER/1ST RESPONDENT ---------------------------------------------- ASHRAF PALLIKKAKALAKATH, AGED 40 YEARS, S/O.KUNHIMOIDEEN KUTTY AT PRESENT AT POST BOX NO.58904, BIDA ZAYED, ABUDHABI,UAE, PERMANENT ADDRESS AT THEKKEKAD, P.O.PADANNEKADAPPURAM, PADANNA VILLAGE, KASARAGOD DISTRICT. BY ADV. MR.K.P.HARISH RESPONDENTS/COMPLAINANT --------------------------------------------- 1. K.P. RAHMATH, AGED 30 YEARS, D/O.ABDUL RAHMAN, RESIDING AT THEKKEKAD, DOOR NO. XII/311, P.O PADANNEKADAPPURAM, PADANNA VILLAGE, KASARAGOD DISTRICT. 2. STATE- REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.210 OF 2010 ------------------------------------------ Dated 21st January 2010 O R D E R Petitioner, the first respondent in M.C.146/2009 filed this petition to quash Annexure-AII order passed by Judicial First Class Magistrate-I, Hosdurg under Section 23(2) of Protection of Women from Domestic Violence Act (hereinafter referred to as the Act) on an application filed by the first respondent for interim order under Section 23(1) of the Act. Petition is filed contending that though for an ad interim order under Sub Section 2 of Section 23 or interim order under Sub Section 1 of Section 23, affidavit is to be filed as provided in form No.III of the Rules no such affidavit was filed and an Crmc 210/10 2 affidavit was filed only in form No.II and in such circumstances, learned Magistrate should not have granted an order without notice in favour of first respondent and therefore, Annexure-AII order is to be quashed. 2. Sub Section 1 of Section 23 provides for interim orders in favour of aggrieved person. Even an e-parte order could be passed. Sub Section 2 of Section 23 provides for ad-interim orders. Both the orders could be passed ex-parte. An ad interim order under Sub Section 2 of Section 23 could be passed, if an urgent relief is to be granted to the aggrieved person and learn Magistrate is satisfied that on the facts and circumstances of the case, such an order is to be passed. An order passed under Section 23(1) or 23(2) is appealable, as provided under Section 29 of Crmc 210/10 3 the Act. Remedy of the petitioner is to challenge Annexure-AII order in an appeal as provided under Section 29 before the Sessions court or to appear before the learned Magistrate as directed in Annexure-AII order and seek a final or interim order under Section 23(1), after hearing the petitioner. Petitioner is entitled to raise all the contentions either before the learned Magistrate or in appeal. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.