IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 5TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO. 2637/2017 BETWEEN G. K. RADHAKRISHNA, S/O LATE KARIYAPPA, AGED ABOUT 36 YEARS, R/AT #1059, 1ST CROSS, SHIVANANJAPPA LAYOUT, MANDYA-571 401 ... PETITIONER (BY SRI. G. K. RADHAKRISHNA, PETITIONER AS PARTY-IN-PERSON) AND S. SMITHA @ KRUPA B A, B.ED., D/O S M SATHYANARAYANA (HEAD CONSTABLE), AGED ABOUT 31 YEARS, R/AT 173, NETHAJINAGAR, IN FRONT OF SIDDI VINAYAKA TEMPLE, ALANAHALLI, T.NARASIPURA ROAD, MYSURU-570 026 ... RESPONDENT (BY SRI. SACHIN B. S., ADV.) THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO SET ASIDE THE ORDERS ON 16.03.2017 IN CRL.MISC.NO.21/2013 ON THE FILE OF III-J.M.F.C., MYSURU.
THIS CRL.P COMING ON FOR ORDERS A/W IA NOS. 2/2017 AND 3/2017 THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner has approached this Court directly calling in question the order dated 16.03.2017 passed by the JMFC-III Court, Mysuru, in C.Mis.21/2013.
2. The impugned order discloses that the petitioner has made an applications under Sections 161, 162, 165 r/w. Section 45 of the Indian Evidence Act and under Section 15 of the Protection of Women from Domestic Violence Act, 2005 ( for short, ‘PWDV Act’) and also under Section 135 of the Indian Evidence Act. The petitioner- G.K. Radhakrishna (Party-in-Person) herein has mainly concentrated on the ground that the petitioner in C.Mis. No.21/12013 is not a female and she is a transgender. Therefore, in order to establish the said aspect, he made the above applications before the trial Court and vide order dated 16.03.2017, the court has dismissed the said application at the cost of Rs.500/-, against which order, the present criminal petition is preferred.
3. It would suffice to say that any order passed by the Domestic Violence Court is made appealable under Section 29 of the PWDV Act, which reads as under:-
29. Appeal,- There shall lie an appeal to the Court of Sessions 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. In view of the above said provision, when an alternative remedy is available, the court cannot invoke Section 482 of Cr.P.C. for any purpose.
5. In the above said circumstances, without going into merits or demerits of the case of the petitioner or the respondent, it would be advisable that the petitioner has to approach the Appellate Court for his remedies calling in question the impugned order. Hence, the following order:-
ORDER Petition is dismissed with liberty to the petitioner to challenge the impugned order by way of appeal before the competent Appellate Court under Section 29 of the PWDV Act. Office is hereby directed to return all the papers filed by the petitioner along with this petition so as to enable him to prefer the appeal.
In view of dismissal of this petition, the applications- IA No.2/2017 filed for vacating stay and IA No.3/2017 for direction, do not survive for consideration. Accordingly, the said applications are also dismissed.
Sd/-
JUDGE KGR*