IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Crl.MC.No. 4073 of 2008() ----------------------------------- CMP.54/1992 OF CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... PETITIONER/COUNTER PETITIONER ---------------------------------------------------- THOTTASSERY KALATHIL HAMZA, S/O.KUNHAHAMMED, AGED 65 YEARS, VAZHENGADA, ANAMANGAD, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR SRI.JIJO PAUL SMT.M.T.SHEEBA SRI.P.A.RAJESH SRI.K.RAKESH RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. THE STATE OF MAHARASHTRA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, MUMBAI, MAHARASHTRA STATE. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4073 of 2008 ------------------------------------------------- Dated this the 19th day of November, 2008 ORDER Against the petitioner, the learned Chief Judicial Magistrate, Manjeri. has issued a non-bailable warrant of arrest to secure his presence. 2. C.M.P.No.54/92 is registered on the basis of a requisition from the State of Maharashtra represented by the Secretary, Home Department, to secure the arrest of a person who is ordered to be detained under the COFEPOSA Act. That order of detention, it appears, was issued as early as on 7/7/91. The said request was registered as C.M.P.No.54/92. So far the arrest has not been effected. 3. The petitioner has a grievance that he is not the Crl.M.C. No. 4073 of 2008 -: 2 :- one ordered to be detained as per the order of detention dated 7/7/91. According to him, his passport was fraudulently made use of by someone else and instead of proceedings against such person, proceedings are now initiated against him. 4. It is seen that proceedings were pending before the learned CJM in C.M.P.No.54/92 to ascertain whether the petitioner herein is the person whose arrest is required as per C.M.P.No.54/92. That controversy has not been resolved yet. The report of the learned CJM reveals the allegation that the petitioner has not co-operated with such enquiry to ascertain whether the petitioner is the one to be arrested in C.M.P.No.54/92. The proceedings have been dragging on. 5. As per the order dated 29/10/08, this Court had directed the petitioner to appear before the learned CJM and execute a bond for Rs.50,000/- with two solvent sureties. He has accordingly appeared before the learned Magistrate and has executed the bond, it is submitted. 6. Let the past history remain where it is. It is now Crl.M.C. No. 4073 of 2008 -: 3 :- necessary to ascertain whether the petitioner is the person to be arrested in execution of the warrant in C.M.P.No.54/92. The records show that the property belonging to the warrantee in C.M.P.No.54/92 has already been attached also. The learned CJM must now conduct an enquiry to ascertain whether the petitioner is the one whose property has been attached in proceedings under Sec.82/83 Cr.P.C. It will further have to be ascertained whether the petitioner is the warrantee i.e., the person to be arrested in C.M.P.No.54/92. Depending on the out come of such enquiry appropriate action will have to be taken by the learned Magistrate. I am satisfied that this Crl.M.C. can, in these circumstances, be allowed subject to appropriate directions. 7. In the result: (a) This Crl.M.C. is allowed. (b) Following directions are issued: (i) The petitioner shall appear before the learned CJM, Manjeri, on 1/12/08 to continue the proceedings in C.M.P.No.54/92. (ii) The petitioner shall be given an opportunity to raise all his objections to show that he is not the person Crl.M.C. No. 4073 of 2008 -: 4 :- against whom arrest is to be secured in C.M.P.No.54/92. The learned CJM shall consider all contentions and objections and pass a reasoned order resolving the said controversy. (iii) Until such a decision is taken, the petitioner shall appear in person before the learned Magistrate on all dates of posting unless such presence is exempted by the learned Magistrate for any reason. (iv) If the petitioner does not so appear and offers no satisfactory reasons, the enquiry shall be continued by detaining the petitioner in prison. (v) It is made clear that this order shall not prejudice the right of the petitioner to challenge the order of detention dated 7/7/91. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 4073 of 2008 -: 5 :- Crl.M.C. No. 4073 of 2008 -: 6 :- R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4073 of 2008 ------------------------------------------------- Dated this the 29th day of October, 2008 ORDER Notice given and the learned Public Prosecutor appears for the 2nd respondent. Issue notice to R1. 2. Call for a detailed report from the learned Chief Judicial Magistrate, Manjeri, of the sequence of events that have taken place in this case which culminated in the issue of a non-bailable warrant against the petitioner. Crl.M.A.No.5976/08: There shall be a direction that if the petitioner appears before the learned CJM within 10 days and executes a bond for Rs.50,000/- with two solvent sureties, no further steps shall be taken against the petitioner. In such bond, the petitioner shall undertake to appear before the learned Magistrate as and when directed by the learned Magistrate or this Court or any other court of competent jurisdiction. Call on 17/11/2008. Crl.M.C. No. 4073 of 2008 -: 7 :- (R. BASANT, JUDGE) Nan/