IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 1156 of 2007()
1. N.M.NAVAS M S/O.MAJEED,
... Petitioner
2. S.H.O., CHAKKARAKKAL POLICE STATION,
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.C.K.SREEJITH
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :25/05/2007
O R D E R
R.BASANT, J.
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Crl.M.C.No.1156 of 2007
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Dated this the 25th day of May 2007
O R D E R
The petitioner is the accused in a crime registered alleging
commission of the offence punishable under Section 379 I.P.C. A
motor cycle was seized by the police alleging that that was used for
the commission of the crime. The petitioner filed an application for
return of the said motor cycle. That petition was numbered as
C.M.P.7/07. The same was not promptly disposed of and no orders
were passed. This obliged the petitioner to file C.M.P.No.115/07 to
advance hearing of C.M.P.No.7/07 and pass appropriate orders.
2. It is the grievance of the petitioner that no orders have
been passed even now in C.M.P.No.7/07 and C.M.P.No.115/07. He
further submits that the learned Magistrate had initially directed the
petitioner to produce two solvent sureties with solvency certificates
for Rs.50,000/- each. Later he was directed to produce title deed of
the sureties also.
3. The learned counsel for the petitioner complains that the
procedure adopted by the learned Magistrate is totally incorrect. It
is, in these circumstances, prayed that appropriate directions may be
issued.
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4. Report of the learned Magistrate was called for. The
report shows that C.M.P.No.115/07 is no more pending and the same
has been disposed of. C.M.P.No.7/07 has not been finally disposed of
yet, reports the learned Chief Judicial Magistrate. It only remains
closed and has t be brought up for final disposal, it is submitted.
5. I must opine that the procedure adopted by the learned
Magistrate is not correct. The report of the learned Magistrate shows
that when the petition for release was filed, without disposing of the
said petition, a direction was issued to the petitioner to produce two
solvent sureties with solvency certificates for Rs.50,000/- and their
original title deeds. Why such a direction was issued, paves my
comprehension.
6. This, obviously, is incorrect. Appropriate orders have to
be passed in C.M.P.No.7/07. Question of producing sureties with or
without solvency certificates or title deeds can arise only if the
petition is disposed and depending on the condition, if any, imposed
by the learned Magistrate. After such order for release is passed,
then only the petitioner need produce sureties and documents to
prove their solvency. Here, even admittedly, the learned Magistrate
has not passed any orders on the application for release of the vehicle.
7. I am, in these circumstances, satisfied that a positive
direction deserves to be issued by the learned Chief Judicial
Magistrate to pass appropriate orders in C.M.P.No.7/07 wherein the
Crl.M.C.No.1156/07 3
petitioner has claimed release of the vehicle. Appropriate orders on
merits shall be passed. Appropriate conditions can also be imposed.
The petitioner can thereupon either comply with the order or
challenge the order at his option. At any rate, the procedure adopted
of not disposing of the petition for release of the vehicle and directing
the accused earlier to produce sureties with solvency certificates and
title deeds cannot be approved. First of all order must be passed on
the question of the entitlement of the petitioners. Such order may be
subject to appropriate conditions. Only thereafter, the question of the
petitioner attempting to comply with the same can arise.
8. In the result, this Criminal Miscellaneous Case is allowed.
The learned Magistrate is directed to pass appropriate orders in
C.M.P.No.7/07 as expeditiously as possible, at any rate, within a
period of ten days from the date on which a copy of this order is
placed before the learned Magistrate.
Hand over copy of this order to the learned counsel for the
petitioner.
(R.BASANT, JUDGE)
jsr
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Crl.M.C.No.1156/07 5
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF APRIL 2007