IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 Crl.MC.No. 1816 of 2011() ------------------------- CMP.1764/2011 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... (CRIME NO.243/2011 OF KILIMANOOR POLICE STATION) ....... PETITIONER(S): -------------------------- MUHAMMED ANAS, S/O.ABDUL MUTHALIB, JANSA MANZIL, THOLIKUZHY, PAZHAYAKUNNUMMEL VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI. K.SIJU, SMT.BINDU GEORGE. RESPONDENT(S): STATE: --------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KILIMANOOR THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. V. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.1816/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF PETITION IN CMP.NO.1764/2011 IN CRIME NO.243/2011 DTD. 7/04/2011. ANNEX.2: COPY OF F.I.R. IN CRIME NO.243/2011 ALONG WITH THE MAHAZAR. ANNEX.3: COPY OF ORDER IN CMP NO.1764/2011 DTD. 26/04/2011. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1816 of 2011 ==================================== Dated this the 17th day of June, 2011 O R D E R Public Prosecutor takes notice for the respondent. 2. Petitioner is aggrieved as learned Judicial First Class Magistrate-II, Attingal has refused to release the vehicle to him notwithstanding Annexure-3, order dated April 26, 2011 on C.M.P. No.1764 of 2011 (Crime No.243 of 2011 of Kilimanoor Police Station). The Vehicle was taken into custody by the police in connection with the said crime case. Petitioner, claiming to be purchaser of the said vehicle from its registered owner filed C.M.P. No.1764 of 2011 for interim custody of the vehicle under Section 451 of he Code of Criminal Procedure. By Annexure-3, order that petition was allowed. It is seen from the order that vehicle is ordered to be released to the registered owner, imposing conditions on him. Petitioner, pursuant to the said order wanted to execute the bond. But the successor Magistrate refused to permit petitioner to execute the bond since Annexure-3, order is not in favour of petitioner but the registered owner of the vehicle. Though petitioner produced a Special Power of Attorney (said to CRL.M.C. No. 1816 of 2011 -: 2 :- be) executed by the registered owner, that also was of no avail. Hence this petition. Learned counsel submitted that even at least as Power of Attorney Holder of the registered owner petitioner could execute the bond and take custody of the vehicle. 3. May be, petitioner as purchaser in possession of the vehicle sought interim custody by filing C.M.P. No.1764 of 2011. But on going through Annexure-3, order it is seen that custody of the vehicle is ordered to be given to the registered owner imposing certain conditions on him. Admittedly petitioner is not the registered owner of the vehicle. Hence learned Magistrate is correct in refusing to permit petitioner execute the bond. The Special Power of Attorney cannot also be pressed into service at this stage since petitioner has not filed C.M.P. No.1764 of 2011 as Power of Attorney Holder of and on behalf of the registered owner. 4. The difficult situation can be got over only be setting aside Annexure-3, order and directing learned Magistrate to decide C.M.P. No.1764 of 2011 afresh with opportunity to the petitioner to prove his claim of ownership and possession. Petitioner can either prove his ownership and possession of the vehicle with notice to the registered owner also or on the strength of the special Power of Attorney he claims to have in his favour, CRL.M.C. No. 1816 of 2011 -: 3 :- file fresh petition seeking interim custody of the vehicle on behalf of the registered owner and based on the Power of Attorney. Resultantly, Criminal Miscellaneous Case is allowed. Annexure-A3, order is set aside and C.M.P. No.1764 of 2011 is remitted to the court of learned Judicial First Class Magistrate-II, Attingal for fresh decision in the light of observations made above. Learned Magistrate shall expedite disposal of the petition. THOMAS P. JOSEPH, JUDGE. vsv