IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.MC.No. 2497 of 2009 -------------------------------- MC.43/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER(S): ---------------------- M.V.SEBASTIAN MANICKANAMPARAMBIL, IYYATTIL LANE, CHITTOOR ROAD ERNAKULAM, KOCHI. BY ADV. SRI.K.PAUL KURIAKOSE RESPONDENT(S): ----------------------- 1. SHALLY THOMAS W/O.M.V.THOMAS, MANICKANAMPARAMBIL, VYLOPPILLY LANE, AZAD ROAD, KALOOR,KOCHI 682 017. 2. STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.AMJAD ALI FOR R2. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2497 of 2009 -------------------------- ORDER Petitioner is the respondent in M.C.No.43/2009 on the file of Judicial First Class Magistrate's Court-I, Ernakulam, instituted by the first respondent under Section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the Act'). This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that allegations in Annexure-A5 complaint do not constitute an offence as defined under the Act and first respondent is not an aggrieved person as defined under the Act and petitioner is also not a respondent as provided under the Act and therefore, the petition before the Magistrate is not maintainable. 2. Learned counsel appearing for the petitioner was heard. CRMC 2497/09 2 3. True, as rightly canvassed by the learned counsel appearing for the petitioner, a petition under Section 12 of the Act is maintainable only by an aggrieved person or by any person representing the aggrieved person or by a Protection Officer for the aggrieved person. So also, a respondent in the petition could only be a respondent as defined under Section 2(q) of the Act. The question whether first respondent is an aggrieved person and whether petitioner could be a respondent as defined under the Act are matters to be decided by the concerned Magistrate. If petitioner is not a respondent as defined under the Act, proceedings as against him is not maintainable. So also, if the first respondent is not an aggrieved person, learned Magistrate is not entitled to entertain the petition. In such circumstances, it is for the petitioner to agitate the matter before the concerned Magistrate. Petitioner is at liberty to file an application to hear these aspects as a CRMC 2497/09 3 preliminary point and seek an order from the concerned Magistrate. If such an application is filed, Magistrate to consider these aspects as a preliminary point and pass appropriate order in accordance with law. Petition is disposed. 30th July, 2009 (M.Sasidharan Nambiar, Judge) tkv