Safiya Malik

The High Court of Kerala Single Bench of Justice G. Girish declined to interfere with an interim protection order passed by a Magistrate under the Protection of Women from Domestic Violence Act, 2005. The Court held that the inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, cannot be exercised to unsettle such an interim order, especially when an appellate remedy exists. It directed the Registry to return the petition filed under Section 528 of BNSS, finding that the defect regarding maintainability was sustainable.

The present petition was filed challenging Annexure A3, an interim order issued on 5 October 2024 by the Grama Nyayalaya, Vellanadu, in proceedings under the Protection of Women from Domestic Violence Act, 2005 (PWDV Act). The petitioner, a 59-year-old man residing in Thiruvananthapuram, sought to invoke Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which confers inherent powers upon the High Court. The petition was filed as an unnumbered Criminal Miscellaneous Case (Filing No. 5751 of 2025), and the Registry had noted a defect regarding its maintainability.

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The Registry specifically questioned whether the petition under Section 528 of the BNSS was maintainable, in light of the statutory appeal provided under Section 29 of the PWDV Act, 2005. The petitioner was represented by learned counsel M.R. Sarin. The respondents to the petition included the State of Kerala and a woman, aged 55 years, residing at the same address as the petitioner, and who was identified as the wife of the petitioner.

According to the order, the petitioner challenged the interim relief granted by the Magistrate and attempted to invoke the High Court's inherent jurisdiction to set aside or interfere with that order. The petition did not seek a statutory appeal under Section 29 but rather pursued remedy under Section 528 of BNSS, the successor provision to Section 482 of the Code of Criminal Procedure (Cr.P.C.), which provides for inherent powers of the High Court.

The petitioner contended, through counsel, that such inherent jurisdiction remained available despite the existence of a statutory appellate remedy. Reference was made to a recent decision of the Supreme Court in Shaurabh Kumar Tripathi v. Vidhi Rawal [2025 (4) KHC SN 5], wherein it was argued that petitions under Section 482 of Cr.P.C. (now Section 528 BNSS) were maintainable even in the context of interim orders passed under the PWDV Act.

The Court considered this contention in light of existing precedents, including earlier judgements by the Kerala High Court and the Supreme Court of India. One such decision was Vijayalekshmi Amma V.K. (Dr.) & Anr v. Bindu V and Others [2010 (1) KHC 57], where a learned Single Judge held that Section 482 Cr.P.C. powers could not be exercised to quash interim orders passed under Sections 18 to 23 of the PWDV Act.

Another cited authority was the Supreme Court decision in Naresh Potteries (M/s.) v. M/s. Aarti Industries [2025 KHC 6001], which reiterated that inherent powers should be exercised sparingly and only in cases where it is necessary to prevent abuse of the process of court or to secure the ends of justice.

The Court observed “the Registry has noted a defect that the maintainability of this petition under Section 528 of BNSS has to be looked into since appeal is provided under Section 29 of the Protection of Women from Domestic Violence Act, 2005."

Justice G. Girish noted, "In Vijayalekshmi Amma V.K.(Dr.) & Anr v. Bindu V and Others [2010 (1) KHC 57], a learned Single Judge of this Court has held that the extraordinary inherent powers of this Court under Section 482 Cr.P.C. cannot be exercised to quash the interim orders passed by Magistrates under Sections 18 to 23 of PWDV Act, since such an order is neither necessary to give effect to any order under the Code nor to prevent abuse of the process of any court or to secure the ends of justice."

Further, citing the Supreme Court, the Court stated, "In Naresh Potteries (M/s.) V. M/s. Aarti Industries [2025 KHC 6001], the Hon’ble Supreme Court has reiterated the law that inherent powers of this Court under S.482 of Cr.P.C. should be exercised sparingly and with great caution and further that inherent powers should not be used to interfere with the jurisdiction of the lower courts or to scuttle a fair investigation or prosecution."

Addressing the petitioner’s reliance on Shaurabh Kumar Tripathi v. Vidhi Rawal, the Court observed, "While exercising jurisdiction under Section 482 Cr.P.C for quashing the proceedings, it is made clear by the Apex Court in the aforesaid decision that the High Court should be very slow and circumspect in interfering with the orders passed under Section 12(1) of the PWDV Act."

The judgment included the following passage from the Supreme Court judgement: "Interference can be made only when the case is clearly of gross illegality or gross abuse of the process of law. Generally, the High Court must adopt a hands-off approach while dealing with proceedings under Section 482 for quashing an application under Section 12(1)."

"Unless the High Courts show restraint in the exercise of jurisdiction under Section 482 of the Cr.P.C while dealing with a prayer for quashing the proceedings under the DV Act, 2005, the very object of enacting the DV Act, 2005, will be defeated."

"We must also note here that against an order passed by a learned Magistrate; there is an appeal provided under Section 29 to the Court of Session."

Considering these legal principles, the Court recorded, "only in cases where there is manifest illegality and blatant irregularity of the proceedings, the High Court will be justified in exercising the jurisdiction under Section 482 Cr.P.C. to unsettle the orders passed by the Magistrate under the provisions of the PWDV Act."

The Court concluded that the interim order challenged by the petitioner did not exhibit gross illegality or irregularity. It held, "Annexure A3 interim order passed by the learned Magistrate, cannot be said to be one of gross illegality or irregularity."

The Bench stated, "The petitioner could very well approach the same court seeking order, modifying or vacating the aforesaid order if there are sufficient reasons."

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Moreover, the Court pointed out the availability of appellate remedy: "That apart, appeal is provided under Section 29 of the PWDV Act against the aforesaid order."

Based on this reasoning, the Court directed, "it is not possible for this Court to exercise the inherent powers under Section 528 of the BNSS to interfere with Annexure A3 interim order passed by the learned Magistrate."

The judgment concluded with the direction: "The defect noted by the registry is found sustainable. The Registry shall return the petition to the petitioner."

Advocates Representing the Parties:

For the Petitioner: M.R. Sarin, Advocate

For the Respondents: Public Prosecutor for Respondent No. 1

Case Title: Titus v. State of Kerala & Anr.

Case Number: Crl.M.C. 5751 of 2025 (Filing No.)

Bench: Justice G. Girish