IMPORTANT POINT
The appellate court has implied powers to grant interim orders under the DV Act to ensure justice during the appeal process.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (wrongly quoted as Section 482 of the Code of Criminal Procedure, 1973), by the petitioners, challenging Annexure A6 order, whereby, the learned Sessions Judge stayed enforcement of order, dated 18.4.2024 in C.M.P.No.1341/2023 in M.C.No.18/2023 on the files of the Judicial First Class Magistrate Court-II, Kochi, granting maintenance at the rate of Rs.40,000/- per month to the petitioners herein.

2. Heard the learned counsel for the petitioners, the learned counsel appearing for the 1st respondent and the learned Public Prosecutor.

3. At the time of admission hearing itself, the learned counsel for the petitioners, who are the petitioners in the M.C. and in the C.M.P., raised a question, after referring the decision of the Apex Court in Shalu Ojha v. Prashant Ojha reported in [(2015) 2 SCC 99] with reference to paragraph Nos.25, 26, 29 and 30 contending that, even though an interim order passed under the Protection of Women from Domestic Violence Act, 2005 (for short, 'the DV Act' hereinafter) is appealable under Section 29 of the DV Act, the appellate court has no power to pass interim orders, as the said power is not provided under the DV Act.

4. Now, the question falls for consideration is, whether an appellate court exercising appeal under Section 29 of the DV Act, is empowered to grant an interim order during pendency of the appeal?

5. In this connection, it is necessary to refer Shalu Ojha's case (supra), wherein, it was held in paragraph Nos. 25, 26, 29 and 30, as under:

25. Section 29 provides for an appeal to the Court of Session against any order passed by the Magistrate under the Act either at the instance of the aggrieved person or the respondent.

26. One important factor to be noticed in the context of the present case is that while Section 23 expressly confers power on the Magistrate to grant interim orders, there is no express provision conferring such power on the Sessions Court in exercise of its appellate jurisdiction. Section 23 reads as follows:

“Section 23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.

(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent."

29. We only note that there is no express grant of power conferred on the Sessions Court while such power is expressly conferred on the Magistrate under Section 23. Apart from that, the power to grant interim orders is not always inherent in every Court. Such powers are either expressly conferred or implied in certain circumstances. This Court in Super Cassettes Industries Limited v. Music Broadcast Private Limited, (2012) 5 SCC 488, examined this question in detail. At any rate, we do not propose to decide whether the Sessions Court has the power to grant interim order such as the one sought by the respondent herein during the pendency of his appeal, for that issue has not been argued before us.

30. We presume (we emphasize that we only presume for the purpose of this appeal) that the Sessions Court does have such power. If such a power exists then it can certainly be exercised by the Sessions Court on such terms and conditions which in the opinion of the Sessions Court are justified in the facts and circumstances of a given case. In the alternative, if the Sessions Court does not have the power to grant interim orders during the pendency of the appeal, the Sessions Court ought not to h