IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 Crl.MC.No. 941 of 2008() ------------------------ CC.756/2001 of JUDL. MAGISTRATE OF FIRST CLASS-II, SULTHANBATHERY .................... PETITIONER: DEFACTO COMPLAINANT: -------------------------------- JOACHIM N.K., S/O.LATE. KORA, AGED 44 YEARS, NAGANCHERIL HOUSE, PATTARUPADI, SULTHAN BATHERY. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENTS: STATE: ------------------- STATE OF KERALA-C.I. OF POLICE, SULTHAN BATHERY POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. M.S. BREEZE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C. No. 941 of 2008 * * * * * * * * * * * * * * * * * * Dated: 03-03-2008 ORDER This Crl. M.C. filed under Section 482 Cr.P.C. is against the the judgment dated 12-09-2002 passed by the J.F.C.M. II, Sulthan Bathery directing confiscation of MOs 7 to 11 which according to the petitioner are items which have not been converted from the gold ornaments stolen from the petitioner's house during the occurrence which was the subject matter of the above M.C. 2. The petitioner would have it that MO11 was the only ornament which was recovered as such without any alteration. His grievance is that the order for confiscation of MOs 7 to 11 was passed by the Magistrate without giving him an opportunity to put forward his claim. The above direction amounts to disposal under Section 452 Cr.P.C. and the remedy of the petitioner is an appeal under Sec. 454 Cr.P.C. to that Court to which appeals ordinarily lie from convictions by the former court. Hence, the petitioner may file an appeal before the Court of Session under Sec. 454 Cr.P.C. It is true that State's Appeal against the order of acquittal preferred before this Court with a petition to condone the delay as Crl. M.A. 11336 of 2003 was -:2:- dismissed for non-prosecution on 3-7-2007. Even assuming that the dismissal of the said appeal as time barred would amount to confirmation of the order of acquittal and the resultant merger of the trial court's order with that of this Court, the said order can operate only as between the parties to the case namely the State and the accused. It cannot operate as a merger viz-viz. the de facto complainant whose statutory remedy continues to be an appeal to be filed under Sec. 454 Cr.P.C. In case the petitioner files an appeal under Section 454 Cr.P.C. before the Court of Session, I am sure that that court will take into account the fact that the petitioner was unaware of the final disposal of the MOs by the trial court and he therefore has sufficient reason to get the delay condoned. This Crl.M.C. is accordingly dismissed as not maintainable. V. RAMKUMAR, (JUDGE) ani.