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2024 DIGILAW 328 (PAT)

Faizan @ Md. Faijan, S/o. Ajimuddin v. Muslima Khatoon, W/o. Md. Faizan

2024-04-01

ARUN KUMAR JHA

body2024
JUDGMENT : Arun Kumar Jha, J. Present learned counsel for the petitioner. However, on repeated calls, none appears for the respondent. 2. Heard learned counsel for the petitioner and I intend to dispose of the present petition at the stage of admission itself since it has been observed on the last date of hearing, that the respondent has already been served and another opportunity was given to her despite that she did not appear. 3. In the instant petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 08.02.2017 passed in Civil Misc. Appeal No. 04 of 2015 by the learned District & Sessions Judge, Kishanganj reversing/setting aside the order dated 09.10.2015 passed in Case No. C 1306 of 2010 by the learned Judicial Magistrate-1st Class, Kishanganj whereby and whereunder the learned trial court dismissed the complainant/respondent’s case filed under Sections 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2015 (hereinafter referred to as ‘the Act’). 4. Learned counsel for the petitioner submits that the learned appellate court went beyond its jurisdiction and passed the order, which is not sustainable in the eye of law. The impugned order is unjust, improper and without jurisdiction as no civil miscellaneous appeal is maintainable against the order passed under the Act by the Judicial Magistrate. Learned counsel further submits that only an appeal under Section 29 of the Act is maintainable before the Court of learned Sessions Judge against the order(s) passed by the learned Judicial Magistrate under the Act. 5. I find merit in the submission made by the learned counsel for the petitioner. By no stretch of imagination, a civil misc. appeal would lie against an order passed by a Judicial Magistrate-1st Class on a petition filed under Sections 18, 19, 20, 21 and 22 of the Act. When specific provision has been made under Section 29 of the Act, an appeal would lie only to the Sessions Court against such order and not civil misc. appeal as has been entertained by the learned District Judge, Kishanganj. 6. For the aforesaid reason, the order dated 08.02.2017 passed by the learned District & Sessions Judge, Kishanganj in Civil Misc. Appeal No. 04 of 2015 is set aside. Accordingly, the present petition stands allowed.