Quash and call for the records under Section 482 CrpC in DV

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11.09.2008

CORAM: THE HONOURABLE MR.JUSTICE K.MOHAN RAM

Criminal Original Petition No.15455 of 2008 and M.P.Nos.1 and 3 of 2008

1. Mr. G.Balasubramanian
2. Mrs. Padma ……. Petitioners

-Vs.-

Mrs. Jayashree Rajagopalan ……. Respondent

Prayer : Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure praying for a direction to call for the records relating to Crl.M.P.No.3037 of 2008 on the file of the IX Metropolitan Magistrate, Saidapet, Chennai 15, culminating with the impugned order of the learned Magistrate dated 11.06.2008 and quash the same.

For Petitioners :: Mr. J.Subramaniam, Senior Counse, for Ms. Uma Vijayakumar

For Respondent :: Mr. R.Narendran

O R D E R

The above Criminal Original Petition has been filed by the petitioners herein to quash the order dated 11.06.2007 passed in Crl.M.P.No.3037 of 2008 by the learned IX Metropolitan Magistrate, Saidapet, Chennai 15. The respondent is the daughter-in-law of the petitioners in the above Criminal Original Petition who had married their son by name B.Rajagopalan. The respondent had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (43 of 2005) (hereinafter referred to as “the Act”) seeking various reliefs. Pending application the respondent filed Crl.M.P.No.3037 of 2008 seeking an interim protection order under Section 23 (2) of the Act. The said application has been ordered by the learned Magistrate and being aggrieved by that the petitioners, who are the father-in-law and mother-in-law of the respondent alone have challenged the order on various grounds. The above Criminal Original Petition was admitted and interim stay was granted on 02.07.2008. The respondent has filed M.P.No.1 of 2008 seeking to vacate the interim stay granted by this Court on 02.07.2008.

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2. Learned counsel for the respondent at the threshold submitted that the above Criminal Original Petition seeking to quash the order passed by the learned Magistrate is not maintainable in view of the availability of an effective alternative remedy by way of an appeal under Section 29 of the Act.

3. Therefore before going into the merits of the case this Court felt it necessary to decide this preliminary objection. It will be useful to refer to Section 29 of the Act which reads as follows:-

“29. Appeal. – There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.

4. On the aforesaid preliminary objection raised by the learned counsel for the respondent the learned senior counsel for the petitioners was heard. Learned senior counsel for the petitioners submitted that though an appeal is provided under Section 29 of the Act that right of an appeal is available only as against the final order and not against any interim order passed by the learned Magistrate.

5. I am unable to accept the said contention of the learned senior counsel for the petitioners. A reading of Section 29 of the Act does not show that the right of appeal is restricted only in respect of a final order passed by the learned Sessions Judge and nowhere in the Act it is stated that an appeal will not lie against any interim order passed by the learned Magistrate. A plain reading of Section 29 of the Act does not make any distinction between the final order and the interim order and therefore in the considered view of this Court an appeal will lie both against the final order and an interim order passed by the learned Magistrate in the exercise of powers conferred on him under this Act. Therefore this Court is of the considered view that the preliminary objection raised by the learned counsel for the respondent merits acceptance and accordingly accepted.

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6. In view of the above view taken by this Court, this Court is not going into the merits of the order passed by the learned Magistrate. It is now open to the petitioners to file an appeal before the Court of Sessions under Section 29 of the Act. Since the petitioners were bona fidely prosecuting the proceedings before this Court, if an appeal is filed within a period of two (2) weeks from the date of receipt of a copy of this order, with a petition to condone the delay in filing the appeal before the Court below, the same shall be entertained by the learned Sessions Judge.

7. With the above directions, the Criminal Original Petition is disposed of. Consequently the connected MPs are closed.

srk

To

The IX Metropolitan Magistrate,
Saidapet,
Chennai 15

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