IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3562 of 2008()
1. K.MUHAMMED
... Petitioner
Vs
1. ANJALI
... Respondent
For Petitioner :SRI.K.V.SOHAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :23/09/2008
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - - - -
Crl.M.C.No. 3562 of 2008
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 23rd day of September, 2008
O R D E R
The petitioners have come before this Court with this
petition under Section 482 Cr.P.C. to assail the impugned orders
dt.7.8.08 and 28.8.2008 passed by the learned Chief Judicial
Magistrate, Kasargode in CMP 130 of 2003. The said orders are
extracted below:
“7.8.08:
Petitioner is present. Respondent No.2 and 3 absent.
No further time for enquiry and evidence on the CMP.
Respondents are directed to produce/return the
currency notes worth of Rs.1 lakh 56 thousand. No
further time. Posted to 28.8.08.
28.8.08:
Petitioner is present. The respondent side has not
produced the currency notes which is on kaicheet
dt.26.3.98 from this court. Issue notice to the sureties
of the petitioner who received the amount from this
court on kaicheet to Asmabee ie. Petitioner in CMP
1607/98. Posted to 25.9.08.”
Crl.M.C.No. 3562 of 2008
2
2. Anjali, the first respondent, was employed as a maid servant
in the house of the second petitioner, whose husband is employed
abroad. The first petitioner is the brother of the husband of the second
petitioner. The alleged incident of theft took place in the house of the
second petitioner, about which the first petitioner, in his capacity as
brother-in-law of the second petitioner, had lodged a complaint before
the police. A crime was registered. Investigation was conducted. An
amount of Rs.1.56 lakhs was allegedly recovered as the stolen property
from the possession of the first respondent, who, it is alleged, had
committed the offence of theft. The said amount of Rs.1.56 lakhs was
released pending investigatioin to the second petitioner subject to
conditions, including execution of an appropriate bond. Investigation
was completed. Final report was filed. Cognizance was taken against
the first respondent. The case was initially tried before the J.F.M.C.
Kasargode.
3. Later, realising that the first respondent was a juvenile, the
matter was sent to the Juvenile Justice Board. At that stage further
investigation was conducted by the police under Section 173(8)
Crl.M.C.No. 3562 of 2008
3
Cr.P.C. and on such further investigation a negative final report was
filed by the Investigator. That negative final report was accepted by the
court.
4. The acceptance of the refer report by the C.J.M. (functioning
as the Juvenile Court) passed under Annex.I, was challenged by the
first respondent before this Court and as per Annex.II order
dt.2.8.2007 in Crl.M.C. 363 of 2004 the said challenge was turned
down making it clear that the petitioners shall be at liberty to stake
their claim for final release of the amount recovered at the appropriate
stage.
5. The first respondent later filed application for release of the
amount seized from her possession after the acceptance of the refer
report. The petitioners herein were arrayed as respondents 2 and 3.
They participated in the said proceedings before the C.J.M., Kasargode
in C.M.P. 130 of 2003. Final orders in CMP 130 of 2003 has not been
passed yet. But in the meantime, for the reason that the petitioners
(respondents 2 and 3 in CMP 130 of 2003) were not present before the
learned Magistrate on 7.8.08, the learned Magistrate has issued the
Crl.M.C.No. 3562 of 2008
4
impugned directions dt.7.8.08 and 28.8.2008 calling upon the
petitioners to produce before court the amount of Rs.1.56 lakhs
released to them already. The petitioners are aggrieved by that
direction.
6. The learned counsel for the petitioners submits that the
petitioners are willing to produce the amount before the learned
Magistrate after orders are passed in CMP 130 of 2003. Till then it is
totally unnecessary to direct the petitioners to produce the said amount
before the learned Magistrate. The learned Magistrate, it is significant,
has not come to a conclusion that the petitioners are not entitled to
retain the amount nor has he come to any conclusion that the first
respondent or any other is entitled to release of the said amount. In
these circumstances the impugned directions are premature. The
petitioners are being unnecessarily put to difficulties by the impugned
directions. The learned Magistrate may be directed to pass appropriate
orders on merits under Section 452 Cr.P.C. If such orders are against
the petitioners, they shall have the statutory right of appeal under
Section 454 Cr.P.C. Without and before passing orders under Section
Crl.M.C.No. 3562 of 2008
5
452 Cr.P.C. the petitioners may not be compelled to produce the
amount of Rs.1.56 lakhs before the learned Magistrate. Their sureties
may not be proceeded against under Section 446 Cr.P.C. before final
orders are passed. This in short is the plea raised.
7. I find the plea to be absolutely justified. The amount has
been released to the petitioners on appropriate terms. Only if the
learned Magistrate finds that the petitioners are not entitled to retain
the amount or that the amount is liable to be released to some others,
can and need the Magistrate compel the petitioners to produce the
amount, which has already been released to them. The impugned
orders dt.7.8.08 and 28.8.08 to the extent that they direct the
petitioners to produce the amount of Rs.1.56 lakhs immediately and
before passing any orders under Section 452 Cr.P.C. does deserve to
be challenged, I am satisfied.
8. I am not satisfied that it is necessary in these circumstances to
direct issue of notice to the respondents. I am satisfied that this
Crl.M.C. can be allowed and appropriate directions can be issued in
the interests of justice.
Crl.M.C.No. 3562 of 2008
6
9. In the result:
a) This Crl.M.C. is allowed.
b) The impugned orders dt. 7.8.08 and 28.8.2008 to the extent
that they direct the petitioners to surrender the amount of Rs.1.56 lakhs
straight away and calls upon the sureties of the petitioners to show
cause is set aside.
c) The learned Magistrate is directed to expeditiously complete
the proceedings in CMP 130 of 2003 and pass appropriate final orders
under Section 452 Cr.P.C. after hearing the parties. It is directed that
such final order under Section 452 Cr.P.C., if the same be against the
petitioners, need alone be enforced or executed by the learned
Magistrate.
(R. BASANT)
Judge
tm