IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 Crl.MC.No. 1343 of 2008() ------------------------- CMP.NO.826/08 IN CMP.NO.760/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER: REVISION PETITIONER/PETITIONER/COMPLAINANT ------------------------------------------------------ P.V.ABDUL HAKKIM, S/O.HAMZA HAJI, RESIDING AT 57/2426, M.G.ROAD, ERNAKULAM. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.KAUSER EDAPPAGATH RESPONDENTS: COMPLAINANT ------------------------ 1. JOSEPH GEORGE, MANAGER, M/S.MARIKAR ENGINEERS (P) LTD., NH BYPASS ROAD, CHAKKARAPARAMBIL, COCHIN-32. 2. SULFIKKAR, MANAGER, DO. DO. 3. INDIA VISION SATELLITE COMMUNICATIONS LTD., CHEROOTY ROAD, CALICUT. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI SRI.SUJITH MATHEW JOSE FOR R.3 SRI.GEO PAUL FOR R1 SRI.SANU MATHEW FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/07/2008, ALONG WITH CRMC NO. 1379 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. Nos.1343 & 1379 of 2008 ------------------------------------- Dated this the 7th day of July, 2008 ORDER Petitioner had filed a complaint before the Magistrate alleging commission of offences by respondents 1 and 2. He had also filed an application for issue of a search warrant to search, seize and produce a vehicle before the court. The private complaint was received on file. The prayer for issue of search warrant to produce the vehicle was allowed. The vehicle which was admittedly in the possession of the 1st respondent was seized in pursuance of the search warrant issued by the learned Magistrate and the same was produced before the learned Magistrate. 2. The petitioner herein as also the 1st respondent staked claims for release of the vehicle. The vehicle was released to the 1st respondent subject to conditions. The vehicle is thus in the possession of the 1st respondent. 3. The petitioner has preferred these two Crl.M.Cs complaining about the non release of the vehicle to him and the release of the vehicle to the 1st respondent as per the impugned common order passed by the learned Magistrate. Crl.M.C. No.1343 of 2008 2 4. The 3rd respondent is the registered owner of the vehicle. He had entrusted the vehicle to the 1st respondent for repairs. After repairs it was released to the 3rd respondent. Subsequently the vehicle was again produced before the 1st respondent for repairs. The amounts were due from the 3rd respondent for the initial repairs as also for the subsequent repairs. The 1st respondent took the stand that unless the entire amounts payable as charges for repairs for the first repairs and second repairs were made, the vehicle shall not be released by him. The petitioner took the stand that he had purchased the vehicle from the 3rd respondent and therefore he is not liable to pay any amounts in respect of the first repairs payable by the 3rd respondent. The 1st respondent on the contrary took the stand that the 3rd respondent and the petitioner herein are not separate entities and that in fact the vehicle was entrusted for repairs on both occasions by the 3rd respondent. According to the 1st respondent amounts are due from the 3rd respondent for the first as well as the second repairs and that the 1st respondent is entitled to exercise his right on lien until the entire charges are paid. The 1st respondent took up a further contention that it is only the registered owner-the 3rd respondent to whom he is liable to release the vehicle. Crl.M.C. No.1343 of 2008 3 5. When these petitions came up for hearing, interim directions were issued on 18.06.08 calling upon the learned Magistrate to take a decision on the question whether cognizance deserves to be taken or not. 6. It is now submitted before me that the learned Magistrate has already considered that question and has dismissed the complaint holding that there is no sufficient ground to proceed against the 1st and 2nd respondents. 7. The legal position hence is that a complaint was filed by the petitioner herein against the 1st and 2nd respondents. Pending disposal of the complaint, the search warrant was issued. The vehicle was produced before the court. The court has released the vehicle to the 1st respondent from whose possession it was admittedly seized. Such release was on the basis of a bond executed by the 1st respondent. The learned Magistrate must now consider whether absolute release of the vehicle can be given to the 1st respondent or the petitioner or to any other. Counsel for the 1st respondent submits that cognizance having not been taken and the vehicle having been taken admittedly from his possession he alone is entitled to get absolute release of the vehicle from the court. The 1st respondent claims that he is entitled for release of the vehicle. Crl.M.C. No.1343 of 2008 4 8. In the facts and circumstances of the case, I am satisfied that the proper course to be followed by this Court is to direct the learned Magistrate to take a decision on that question as to whom the vehicle deserves to be released now it having already been held that cognizance need not be taken on the basis of the complaint filed by the petitioner. 9. In the result : i) These Crl.M.Cs are allowed ; ii) The learned Magistrate is directed to hear the petitioner and respondents 2 and 3 (if the 3rd respondent wants to hear) and take a decision on the question as to the person to whom absolute release of the vehicle should be made the complaint having now been dismissed. All concerned shall appear before the learned Magistrate on 14.07.2008. iii) The learned Magistrate shall consider the claims of all concerned for absolute release of the vehicle and pass appropriate orders. 10. Needless to say, the 1st respondent shall be permitted to retain the vehicle in his possession on the strength of the bond executed by him until further orders are passed by the learned Magistrate about absolute release u/s 452 Cr.P.C. (R.BASANT, JUDGE) rtr/- Crl.M.C. No.1343 of 2008 5