IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 Crl.MC.No. 250 of 2009() ------------------------ CMP.6358/2008 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE CRIME NO.300/07 OF FEROKE POLICE STATION .................... PETITIONER(S): PETITIONER ------------------------- YOUSAF @ BICHAPPU, S/O.MUHAMMED, KALANGADAN HOUSE, MORAYOOR, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENT/STATE ------------------------------- THE STATE OOF KERALA, REPRESENTED BY THE INSPECTOR OF POLICE, FEROKE POLICE STATION- THROUGH THE PUBLIC PROSECUTO,HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.250 of 2009 ------------------------------------- Dated this the 19th day of January, 2009 ORDER Petitioner is the accused and he faces allegations in a crime registered at Feroke Police Station under Section 395 I.P.C. The petitioner, who was an agreement owner of a car, had entered into an agreement for sale of that car with another person. He had transferred the same to that person under an agreement. As the person who had entered into an agreement with the petitioner did not allegedly make the payments due under the agreement. The vehicle was allegedly re-possessed by the petitioner. About that, the person who was travelling in the vehicle had filed the complaint. F.I.R has been registered. Investigation is in progress. The vehicle was seized. The vehicle remains in the custody of the court. The seizure was on 15.10.07. It is submitted that no person had staked claim for release of the vehicle till the petitioner filed the present application, ie. C.M.P.No.6358 of 2008. That application has been dismissed by the impugned order on the short ground that the petitioner has not so far surrendered before the learned Magistrate or the Investigating Officer. 2 2. According to the petitioner even though his application for anticipatory bail was earlier dismissed by this Court, he had renewed the prayer for anticipatory bail in the light of the subsequent events and there is a valid direction of this Court in the anticipatory bail application that the petitioner should not be arrested. In these circumstances, the reason shown that the petitioner has not surrendered before the Investigating Officer/the learned Magistrate so far cannot be reckoned as a valid reason to reject his application for release of the vehicle. The vehicle, which is unnecessarily being exposed to sun and rain, is suffering damage and deterioration. 3. The learned counsel for the petitioner prays that in these circumstances this impugned order may be set aside and the vehicle may be ordered to be released to the petitioner. 4. I have considered the submissions made at the Bar. I find merit in the prayer of the learned counsel for the petitioner. I agree with the learned counsel for the petitioner that the prayer of the petitioner deserves to be considered on merits and in accordance with law and the mere fact that the petitioner, against whose arrest an interim direction is said to be in force, has not surrendered before the Investigating Officer or the 3 learned Magistrate, could not have entailed the dismissal of his application for release of the vehicle. 5. But I do note that the rejection of the prayer in the petition must be held to be justified, in that the person from whose custody the vehicle was re-possesed has not been arrayed as a party in the petition filed by the petitioner. Certainly the person from whose possession the vehicle was taken into custody is entitled for notice notwithstanding the fact that such person has not so far appeared before the learned Magistrate. 6. I feel that to take a proper decision on the claim of the petitioner, the person with whom the petitioner had entered into an agreement and the person from whose possession the vehicle was seized, must be arrayed as parties in any application for release of the vehicle. The impugned order is inadequate, but the prayer can be decided only after arraying the relevant persons as respondents. 7. The learned counsel for the petitioner, in these circumstances, submits that this Crl.M.C may not be dismissed. The impugned order may be set aside and the learned Magistrate may be directed to dispose of the matter afresh after giving the petitioner an opportunity to array the necessary parties as additional respondents in the petition. 4 8. I find the said request to be justified. The impugned order is set aside. This Crl.M.C is accordingly dismissed. The learned Magistrate shall dispose of C.M.P.No.6358 of 2008 afresh, but only after ensuring that the petitioner arrays the necessary parties in C.M.P.No.6358 of 2008. 9. Hand over a copy of this order to the learned counsel for the petitioner for production before the learned Magistrate. The learned Magistrate must expeditiously dispose of C.M.P.No.6358 of 2008 afresh. (R.BASANT, JUDGE) rtr/-