IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12614 of 2009(Q)
1. A.P.AJAYAN, OFFICIAL RECEIVER,
... Petitioner
Vs
1. DY.SP. CBCID,
... Respondent
For Petitioner :SMT.S.MUMTAZ
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :28/04/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.12614 OF 2009 (Q)
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Dated this the 28th day of April, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:
i) Call for Ext.P4 official memorandum
issued by the Additional Chief Judicial
Magistrate Court, Thiruvananthapuram,
and quash the same as illegal.
ii) Give direction to the Honourable
Additional Chief Judicial Magistrate Court
to pass orders on Exts.P3 and P5 as
expeditiously as possible.
iii) Pass such other orders which are
incidental and proper in the interest of
justice.
Petitioner is the official receiver of the District Court,
Thiruvananthapuram. In an insolvency proceedings (O.P.(IP).
No.2/2008), he has been appointed as a receiver by the Sub
Court, Thiruvananthapuram and such proceedings are
WPC.12614/09 2
initiated to declare the 4th respondent as insolvent. Fourth
respondent is the prime accused in a crime registered with
allegations of cheating and defrauding a lot of people, and
investigation over that crime is pending. The movable
properties of the above accused, a number of vehicles seized
by the investigating agency, after production before the
Magistrate Court, are ordered to be sold by the Additional
Chief Judicial Magistrate, Thiruvananthapuram, passing
Ext.P4 order without giving notice and hearing the petitioner,
the Receiver appointed by the Sub Court, is the grievance
raised for quashing Ext.P4 order. Petitioner had moved
Exts.P3 and P5 petitions before the Additional Chief Judicial
Magistrate, Thiruvananthapurma, and both of them remain to
be taken up and considered by the Magistrate, is the further
grievance seeking for a direction to the Magistrate to pass
orders on such petitions as expeditiously as possible.
2. I heard the learned counsel for the petitioner and also
the Public Prosecutor. It appears that Ext.P4 order has been
passed by the learned Additional Chief Judicial Magistrate,
WPC.12614/09 3
exercising supervisory jurisdiction of the court over the
investigation of the crime, after perusing the case diary and
taking note of the steps so far taken in the investigation over
the crime. The directions issued by the Magistrate militate
against the order passed by the Sub Court, in the insolvency
proceedings, wherein the Sub Judge has appointed a receiver,
the petitioner, directing him to take over the possession of the
assets of the 4th respondent, who is sought to be declared as
‘insolvent’. Ext.P2 is the further order moved by the learned
Sub Judge on the application of the aforesaid receiver,
wherein he sought orders from the court to enable him to
seize custody of the properties of the respondents proceeded
in the insolvency petition. The learned Sub Judge, after
considering the petition, has directed the Receiver to bring to
the notice of the Criminal Courts, wherein some of the
movable properties belonging to the respondent, after seizure,
as involved in the crime registered, had been produced, to
hand over the custody of the movables to him to enable the
court to pass appropriate orders in the insolvency
proceedings. Despite bringing to the notice of the Additional
WPC.12614/09 4
Chief Judicial Magistrate, after his passing of Ext.P4 order, the
pendency of the insolvency proceedings and the appointment
of the receiver directing him to take possession of the movable
and immovable properties of the persons proceeded against
and sought to be declared as ‘insolvent’, by filing Exts.P3 and
P5 petitions, those petitions are not considered and the
petitioner is not afforded an opportunity to present his case
before the Magistrate, is the submission of his counsel. It is
also submitted that Ext.P4 order had been passed by the
Additional Chief Judicial Magistrate, when he was in charge of
the Chief Judicial Magistrate for a day, over the crime case
pending investigation on the file of the Chief Judicial
Magistrate. Public Prosecutor submits that the directions 3
and 4 issued in Ext.P4 order by the Additional Chief Judicial
Magistrate, directing the investigating officer to sell all the
cars and also the snake boat seized in the case cannot be
proceeded with inview of the conflicting order given by the
learned Sub Judge directing the receiver to take over such
properties belonging to the accused, who are proceeded in the
insolvency proceedings. Having regard to the submissions
WPC.12614/09 5
made by the counsel on both sides and also taking note of the
facts and circumstances involved, I find that the following
directions would suffice the ends of justice. The directions 3
and 4 issued by the learned Additional Chief Judicial
Magistrate under Ext.P4 order, directing the investigating
officer to sell the cars and snake boat of the accused, is
ordered to be kept in abeyance for a period of six weeks from
the date of this judgment, and the learned Additional Chief
Judicial Magistrate or the Chief Judicial Magistrate, as the
case may be, who is having supervision of the crime,
CBCID.No.169/2008, pending investigation, shall consider and
dispose of Exts.P3 and P5 petitions moved by the petitioner,
receiver appointed by the Sub Court in (O.P.(IP)No.2/2008,
within one month from the date of this judgment. Opportunity
to be extended to the above receiver for making submission on
his petitions, which shall be disposed after hearing the
accused, the Asst. Public Prosecutor, and if necessary, the
investigating officer also. The concerned Magistrate, after
giving opportunity of hearing to the parties, shall dispose the
petitions in accordance with law within the time stipulated.
WPC.12614/09 6
Subject to the above directions, this writ petition is disposed
of.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO. OF 2006 ()
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O R D E R
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23rd March, 2009