IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.MC.No. 3562 of 2008() ------------------------- AGAINST THE ORDER DATED 07/08/2008 IN CMP 130/2003 IN CC.17/1997 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONERS/DEFACTO COMPLAINANT: --------------------------------------------------------- 1. K.MUHAMMED, S/O. ABDULLA RESIDING AT PALAM, KASARAGOD. 2. ASMABI, W/O. ABDUL RAZAK, THAYALANGADI, KASARAGOD. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENTS/ACCUSED & STATE: -------------------------------------------------- 1. ANJALI, D/O. VENKATESH DHRUVA, KALLAKURICHI, SELAM TAMIL NADU, NOW AT MAHILA MANDIRAM PARAVANADUKKAM, KASARAGOD DIST. 2. STATE, REP. BY SHO, KASARAGOD (CRIME NO.111/97), REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 3. THE DEPUTY SUPERINTENDENT OF POLICE KASARAGOD (CRIME NO. 618/97), REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 & 3 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3562 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of September, 2008 O R D E R The petitioners have come before this Court with this petition under Section 482 Cr.P.C. to assail the impugned orders dt.7.8.08 and 28.8.2008 passed by the learned Chief Judicial Magistrate, Kasargode in CMP 130 of 2003. The said orders are extracted below: “7.8.08: Petitioner is present. Respondent No.2 and 3 absent. No further time for enquiry and evidence on the CMP. Respondents are directed to produce/return the currency notes worth of Rs.1 lakh 56 thousand. No further time. Posted to 28.8.08. 28.8.08: Petitioner is present. The respondent side has not produced the currency notes which is on kaicheet dt.26.3.98 from this court. Issue notice to the sureties of the petitioner who received the amount from this court on kaicheet to Asmabee ie. Petitioner in CMP 1607/98. Posted to 25.9.08.” Crl.M.C.No. 3562 of 2008 2 2. Anjali, the first respondent, was employed as a maid servant in the house of the second petitioner, whose husband is employed abroad. The first petitioner is the brother of the husband of the second petitioner. The alleged incident of theft took place in the house of the second petitioner, about which the first petitioner, in his capacity as brother-in-law of the second petitioner, had lodged a complaint before the police. A crime was registered. Investigation was conducted. An amount of Rs.1.56 lakhs was allegedly recovered as the stolen property from the possession of the first respondent, who, it is alleged, had committed the offence of theft. The said amount of Rs.1.56 lakhs was released pending investigatioin to the second petitioner subject to conditions, including execution of an appropriate bond. Investigation was completed. Final report was filed. Cognizance was taken against the first respondent. The case was initially tried before the J.F.M.C. Kasargode. 3. Later, realising that the first respondent was a juvenile, the matter was sent to the Juvenile Justice Board. At that stage further investigation was conducted by the police under Section 173(8) Crl.M.C.No. 3562 of 2008 3 Cr.P.C. and on such further investigation a negative final report was filed by the Investigator. That negative final report was accepted by the court. 4. The acceptance of the refer report by the C.J.M. (functioning as the Juvenile Court) passed under Annex.I, was challenged by the first respondent before this Court and as per Annex.II order dt.2.8.2007 in Crl.M.C. 363 of 2004 the said challenge was turned down making it clear that the petitioners shall be at liberty to stake their claim for final release of the amount recovered at the appropriate stage. 5. The first respondent later filed application for release of the amount seized from her possession after the acceptance of the refer report. The petitioners herein were arrayed as respondents 2 and 3. They participated in the said proceedings before the C.J.M., Kasargode in C.M.P. 130 of 2003. Final orders in CMP 130 of 2003 has not been passed yet. But in the meantime, for the reason that the petitioners (respondents 2 and 3 in CMP 130 of 2003) were not present before the learned Magistrate on 7.8.08, the learned Magistrate has issued the Crl.M.C.No. 3562 of 2008 4 impugned directions dt.7.8.08 and 28.8.2008 calling upon the petitioners to produce before court the amount of Rs.1.56 lakhs released to them already. The petitioners are aggrieved by that direction. 6. The learned counsel for the petitioners submits that the petitioners are willing to produce the amount before the learned Magistrate after orders are passed in CMP 130 of 2003. Till then it is totally unnecessary to direct the petitioners to produce the said amount before the learned Magistrate. The learned Magistrate, it is significant, has not come to a conclusion that the petitioners are not entitled to retain the amount nor has he come to any conclusion that the first respondent or any other is entitled to release of the said amount. In these circumstances the impugned directions are premature. The petitioners are being unnecessarily put to difficulties by the impugned directions. The learned Magistrate may be directed to pass appropriate orders on merits under Section 452 Cr.P.C. If such orders are against the petitioners, they shall have the statutory right of appeal under Section 454 Cr.P.C. Without and before passing orders under Section Crl.M.C.No. 3562 of 2008 5 452 Cr.P.C. the petitioners may not be compelled to produce the amount of Rs.1.56 lakhs before the learned Magistrate. Their sureties may not be proceeded against under Section 446 Cr.P.C. before final orders are passed. This in short is the plea raised. 7. I find the plea to be absolutely justified. The amount has been released to the petitioners on appropriate terms. Only if the learned Magistrate finds that the petitioners are not entitled to retain the amount or that the amount is liable to be released to some others, can and need the Magistrate compel the petitioners to produce the amount, which has already been released to them. The impugned orders dt.7.8.08 and 28.8.08 to the extent that they direct the petitioners to produce the amount of Rs.1.56 lakhs immediately and before passing any orders under Section 452 Cr.P.C. does deserve to be challenged, I am satisfied. 8. I am not satisfied that it is necessary in these circumstances to direct issue of notice to the respondents. I am satisfied that this Crl.M.C. can be allowed and appropriate directions can be issued in the interests of justice. Crl.M.C.No. 3562 of 2008 6 9. In the result: a) This Crl.M.C. is allowed. b) The impugned orders dt. 7.8.08 and 28.8.2008 to the extent that they direct the petitioners to surrender the amount of Rs.1.56 lakhs straight away and calls upon the sureties of the petitioners to show cause is set aside. c) The learned Magistrate is directed to expeditiously complete the proceedings in CMP 130 of 2003 and pass appropriate final orders under Section 452 Cr.P.C. after hearing the parties. It is directed that such final order under Section 452 Cr.P.C., if the same be against the petitioners, need alone be enforced or executed by the learned Magistrate. (R. BASANT) Judge tm