Kamalasanan, Moozhikkal Valiyaveedu vs State of Kerala and Padmakumari

Thomas P. Joseph, J.—This petition is filed by the Respondent in C.M.P. No. 2658 of 2010 of the Court of learned Judicial First Class Magistrate, 2010 of the Court of learned Judicial First Class Magistrate, Adimali in a proceeding initiated by the second Respondent under the Protection of Women from Domestic Violence Act (for short, "the Act"). According to the learned Counsel even without a prosecution u/s 31 of the said Act learned Magistrate has issued non bailable warrant to the Petitioner for his non appearance in Court to answer the claim of second Respondent. Learned Counsel submits that Petitioner filed an application through counsel to withdraw the warrant but that application was dismissed as per order dated March 10, 2011 observing that application is filed through counsel. It is pointed out by learned Counsel that proceedings under the Act are in the nature of civil proceeding and that if the Petitioner did not appear in Court to answer the petition against him, consequence is only a decision on the petition in the absence of Petitioner and not issue a warrant of arrest to the Petitioner.

I find some force in the contention raised by learned Counsel but, in the nature of the order I propose to pass I am not deciding the matter in this proceeding since I am disposing of the petition without notice to second Respondent.

I am inclined to give Petitioner time to appear before the learned Magistrate and seek recall of the warrant. I am told that the case is posted before the learned Magistrate on 04.04.2011. Resultantly this criminal miscellaneous case is disposed of in the following lines:

(i) Warrant of arrest issued to the Petitioner will stand in abeyance till 04.04.2011.

(ii) It is open to the Petitioner to appear before the learned Magistrate on that day and move appropriate application for recall of the warrant stating reasons (notwithstanding the order dated March 10, 2011 on C.M.P. No. 667 of 2011) and, if any such application is preferred learned Magistrate shall consider the contention raised by Petitioner and pass appropriate order untrammeled by any observation contained herein.

(iii) Having regard to the circumstances stated, learned Magistrate is directed to dispose of the application to recall warrants expeditiously as possible bearing in mind the nature of proceeding under the Act and that no prosecution is initiated against Petitioner u/s 31 of the Act.