IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 Crl.MC.No. 622 of 2008() ------------------------ AGAINST THE ORDER DATED 30/01/2008 IN CMP.136/08 IN CMP.2027/07 IN CC.28/1998 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... PETITIONERS: 1. SMT.SUMAN SANJAY NIKAM, AGED 40, W/O. LATE N.SANJAY, DEVIKHINDI VILLAGE, KHANAPUR TALUK, SANGLI DISTRICT, MAHARASHTRA. 2. MASTER SAGAR SANJAY NIKAM (MINOR), AGED 17, S/O. LATE NO.SANJAY -DO- -DO-. 3. MASTER SACHIN SANJAY NIKAM (MINOR), AGED 15, S/O. LATE N.SANJAY -DO- -DO-. 4. KUMARI SHALAKA SANJAY NIKAM (MINOR), D/O. LATE N.SANJAY -DO- -DO-. (PETITINERS 2 TO 4 ARE REP.BY GUARDIAN AND MOTHER THE 1ST PETITIONER) REP.BY THE POWER OF ATTORNEY, MR.PRABHAKAR R.S., S/O. RAJARAM, AGED 46, PADMALAYAM, LALAM VILLAGE, PALA, KOTTAYAM DISTRICT. BY ADV. SRI.TOM JOSE (PADINJAREKARA) RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, KOTTAYAM (WEST) POLICE STATION, KOTTAYAM. BY ADV. SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== CRL.M.C. No. 622 of 2008 ========================== Dated this the 12th day of February, 2008. O R D E R The petitioners, four in number, are the legal heirs of one Sanjay who was the de facto complainant in C.C. No. 28/1989 on the file of the court of Judicial First Class Magistrate-II (Mobile), Kottayam. The petitioners are represented by their power of attorney. C.C.No. 28/1989 on the file of the JFCM-II, Kottayam was a prosecution of three accused persons for an offence punishable under Section 392 r/w Section 34 IPC. The aforesaid Sanjay was the de facto complainant in the said case. As per judgment dated 05.02.1994, the learned Magistrate convicted the accused persons of the said offence. MOs 1 to 8 were the gold ornaments which were allegedly stolen from the de facto complainant. In the judgment dated 05.02.1994, the trial court directed return of MOs 1 to 8 to PW1, the said Sanjay. The conviction and the sentence were confirmed by the Sessions Court, Kottayam in Crl.Appeal No. 35/1994. Aggrieved by the appellate judgment, the three accused persons filed three separate revisions before this Court as Crl.R.P Nos. 592, 784 and CRL. M.C. NO. 622/2008 : 2 : 805 of 1999. As per Annexure 6 order dated 08.08.2007, this Court set aside the conviction and acquitted the accused persons of the offences charged against them. With regard to the material objects, it was directed that M.Os shall be disposed of as per the order of the trial court. In the mean while, Sanjay, the de facto complainant expired. After the revisional order the petitioners who are the legal representatives of Sanjay, filed C.M.P.No. 2027/2007 before the trial court for final disposal of MOs 1 to 8 under Section 452 Cr.P.C. The learned Magistrate ordered notice of the proceedings to the accused in the case. Thereupon, the petitioners herein filed C.M.P. No. 136/2008 for dispensing with the said notice stating that the accused were not entitled to notice in the proceedings under Section 452 Cr.P.C. The learned Magistrate as per impugned order dated 30.01.2008 dismissed C.M.P.No. 136/2008 and directed the petitioners to pay the process for issuing notice to the accused in the proceedings commenced under Section 452 Cr.P.C. It is the said order which is assailed in this Crl. M.C. 2. First of all, the accused in the case had not at any stage of the proceedings, put in any application under Section 451 CRL. M.C. NO. 622/2008 : 3 : Cr.P.C for interim custody of the MOs 1 to 8. On the contrary, the learned Magistrate while disposing of the C.C case had directed return of MOs 1 to 8 to the de facto complainant, Sanjay. That was not taken exception to by the accused either in the appeal filed before the Sessions Court or in the revision filed before this Court. This Court, while disposing of the revisions, directed that MOs shall be disposed of as per the orders of the trial court. When as per the orders of the trial court, the de facto complainant was entitled to return of MOs 1 to 8, there was absolutely no need for the Magistrate to issue notice of the proceedings to the accused especially when the learned Magistrate had not entertained any doubt as to whether the petitioners are the legal heirs of Sanjay, the de facto complainant. Hence, the impugned order is set aside and the learned Magistrate shall dispose of C.M.P.No. 2027/2007 in accordance with the directions issued by the very same court while disposing of C.C. No. 28/1989. This Crl. M.C is disposed of as above. V. RAMKUMAR, JUDGE. rv CRL. M.C. NO. 622/2008 : 4 :