IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 Crl.MC.No. 3103 of 2009 --------------------------------------- CMP.2408/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... PETITIONER/RESPONDENT NO.1: N. SANTHOSH, S/O. GOVINDAN, AGED 33 YEARS, NADAMMAL HOUSE, THIRUVANGADU P.O., THALASSERY. BY ADV. SRI.K.RAJESH SUKUMARAN RESPONDENTS/PETITIONER/RESPONDENTS: 1. SHAJINA R, S/O. R.P. VIJAYAN, AGED 28 YEARS, SIVAPRASADAM, NEAR MANOLIKKAVU, TEMPLE GATE P.O., THALASSERY. 2. PUSHA, W/O. KUNHIRAMAN, AGED 48 YEARS, KUNIYIL HOUSE, THIRUVANGADU P.O., THALASSERY. 3. SISHNA, D/O. N. SANTHOSH, AGED 8 YEARS, (MINOR), SIVAPRASADAM, NEAR MANOLIKKAVU, TEMPLE GATE P.O., THALASSERY. 4. SISHNESH, S/O. N. SANHOSH, AGED 7 YEARS (MINOR), DO. DO. (RESPONDENTS 3 AND 4 MINORS REP. BY THEIR FATHER AND NEXT FRIEND, PETITIONER) 5. THE SUB INSPECTOR OF POLICE, THALASSERY POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R5 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3103 of 2009 -------------------------- ORDER Petitioner is the first respondent in C.M.P.No. 2408/2009 on the file of Judicial First Class Magistrate's Court, Thalassery filed by the first respondent under Section 97 of Code of Criminal Procedure to issue a search warrant to the fifth respondent Sub Inspector of Police to conduct a search in the house of the petitioner and second respondent to find out respondents 3 and 4, the minor children and to produce them before this court. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A3 order passed by the learned Magistrate issuing search warrant on the ground that no counter was filed. 2. Case of the petitioner is that in view of the decision of the Apex Court in Ramesh v. Laxmi Bai (1998 SCC (Crl.) 999), Section 97 of Code of CRMC 3103/09 2 Criminal Procedure cannot be invoked for search of a person allegedly confined and hence, learned Magistrate has no jurisdiction to allow C.M.P.No. 2408/2009. Learned counsel submitted that search warrant has been returned to the learned Magistrate, but, C.M.P.No.2408/2009 is still pending. Petition is disposed permitting the petitioner to appear before the learned Magistrate and raise objections, including the jurisdiction of the learned Magistrate to issue a search warrant, in the light of the decision of the Apex Court in Ramesh's case (supra). Learned Magistrate to issue further search warrant only on hearing the petitioner and considering his objections, based on the decision of the Apex Court. 20th October, 2009 (M.Sasidharan Nambiar, Judge) tkv