Aggrieved Person Can Challenge Sessions Court Order U/S 29 DV Act By Filing Revision Petition: Kerala High Court

The judgment was delivered by Justice Bechu Kurian Thomas in a petition filed under Article 227 of the Constitution challenging the order of the Sessions Court which had dismissed the appeal of the petitioner. The petitioner's wife had moved the Judicial First Class Magistrate Court under Section 12 of the DV Act and had obtained a maintenance order against the petitioner. A challenge against this order was dismissed by the Magistrate.

Though the DV Act is a civil legislation, the Code of Criminal Procedure (Cr.P.C) is made applicable to certain sections of the Act. Section 28 of the Act says that Cr.P.C is applicable to Section 12 under which an application is made before the Court. An appeal can be preferred to the Sessions Court against the order of Magistrate under Section 29 of the Act. The Act does not mention whether the Code of Criminal Procedure is applicable to Section 29.

The petitioner submitted that Cr.PC has no application beyond the stage of the court of first instance and therefore, the petitioner does not have the remedies provided under Cr.PC beyond that stage.

The Court referred to a Full Bench decision in Dinesh Kumar Yadav v State of Uttar Pradesh (2018) where it was held that since there is nothing that indicates the exclusion of application of Cr.P.C to the appeal provision, the normal remedies of appeal and revision before the High Court are available against the order of the Sessions Court. The Kerala High Court said that they agree to this view of the Allahabad High Court.

The Court held since the original application before the Magistrate under Section 12 of the Act is governed by Cr.P.C and the appeal against the order of the Magistrate is made before the Sessions Court, the remedy of Criminal Revision Petition under Cr.P.C will be available against the order of the Sessions Court. The Court observed that when Cr.P.C is made applicable to Section 12, the intention is to make it applicable to all proceedings initiated thereunder.

Counsel of the Petitioner: Advocates Shaji Chirayath, Raju Joseph, Jiji M. Varkey, M. K. Safeela Beevi, Savitha Ganapathiyatan, M. M. Shajahan

Case No: OP (Crl.) 223 0f 2024 (Filing No.)

Case Title: C. K. Kunjumon v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 556