P.A.Thomas vs Sub Inspector Of Police on 12 January, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4 of 2009()


1. P.A.THOMAS, PLACKAL HOUSE, MALA,
                      ...  Petitioner

                        Vs



1. SUB INSPECTOR OF POLICE, THRISSUR EAST
                       ...       Respondent

2. M/S.SHRIRAM TRANSPORT FINANCE COMPANY

3. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.G.HARIHARAN

                For Respondent  :SRI.RAJESH NAMBIAR

The Hon'ble MR. Justice R.BASANT

 Dated :12/01/2009

 O R D E R
                             R.BASANT, J
                     ------------------------------------
                      Crl.M.C. No.4 of 2009
                     -------------------------------------
             Dated this the 12th day of January, 2009

                                 ORDER

Against the petitioner, a prosecution was initiated under

Section 420 I.P.C. The petitioner had entered into an agreement

for finances for purchase of a vehicle. There is dispute as to

whether the petitioner has entered into an agreement with the

2nd respondent or with another. Be that as it may, the 2nd

respondent filed a complaint alleging that the petitioner is guilty

of the offence punishable under Section 420 I.P.C. The crux of

the allegations was that though the loan had been availed on the

basis of an agreement, payment has not been made as per the

agreement. The complaint was forwarded to the police under

Section 156(3) Cr.P.C by the learned Magistrate. The police

after completing the investigation filed a final report alleging

commission of the offence under Section 420 I.P.C by the

petitioner. Cognizance was taken. The petitioner entered

appearance and staked the claim for discharge. The vehicle had

been seized. Both the petitioner as well as the 2nd respondent

did stake claims for release of the vehicle to them. All the

questions were considered together and by the impugned order,

a copy of which is produced as Annexure-A5, the learned

Crl.M.C. No.4 of 2009 2

Magistrate came to the conclusion that the petitioner/accused is

entitled for discharge under Section 239 Cr.P.C. Accordingly the

accused was discharged.

2. The vehicle was seized from the possession of the

petitioner/accused. The learned Magistrate had come to the

conclusion that no offence has been established. But it is seen

that the learned Magistrate directed that the vehicle be released

to the financier-the 2nd respondent and not to the petitioner. The

petitioner claims to be aggrieved by that direction which, the

impugned order clearly shows, is issued under Section 452

Cr.P.C after entering a specific finding that the accused is

entitled for discharge.

3. According to the petitioner, the very complaint is only

a clear abuse of process of the court. No offence was committed

in respect of the vehicle. False allegations were raised and a

crime was got registered. The vehicle was got seized by the

police and produced before the learned Magistrate. The

Magistrate is absolutely wrong in these circumstances in

directing release of the vehicle to the 2nd respondent. The

impugned order directing release under Section 452 Cr.P.C may

be set aside, it is prayed.

Crl.M.C. No.4 of 2009 3

4. The learned counsel for the 2nd respondent raises a

technical defence. The counsel submits that an order under

Section 452 Cr.P.C is an appealable order and consequently the

petitioner’s attempt, to persuade this Court to invoke the

extraordinary inherent jurisdiction, is unjustified and improper.

I find merit in that contention. The impugned order, it is made

clear, is one issued under Section 452 Cr.P.C. The petitioner is

entitled to challenge the order by resort to Section 454 Cr.P.C. I

am satisfied that the petitioner must be relegated to claim relief

under Section 454 Cr.P.C and the attempt to request this Court

to invoke the extraordinary inherent jurisdiction is not justified.

5. However, in the facts and circumstances of this case, I

am satisfied that the interests of justice will be served eminently

by issuing a direction that the vehicle shall not be released to the

bank the 2nd respondent on the strength of the impugned order

for a further period of 21 days from today. Hand over a copy of

this order to the learned counsel for the petitioner forthwith for

production before the court below and the appellate court under

Section 454 Cr.P.C.

6. This Crl.M.C is, accordingly dismissed with the above

observations.

(R.BASANT, JUDGE)
rtr/-