IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 21460 of 2009(Q) -------------------------- AGAINST THE ORDER IN CMP 7929/08 IN CMP.7772/2008 of J.M.F.C.-I,NEYYATINKARA .................... PETITIONER(S): ------------------------- AJITHKUMAR, S/O. MURALEEDHARAN NAIR, VIJAYALAM, THAMBURAN NAGAR, INDUSTRIAL ESTATE, THIRUVANANTHAPURAM. BY ADV. MR.M.K.CHANDRAMOHAN DAS RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, NEMOM POLICE STATION, THIRUVANANTHAPURAM. 3. M.K. SALIM, S/O. MUHAMMED KUNJU, T.C. NO.35/649, VALLAKADAVU, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER MR. S.U.NAZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21460/2009 Q APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE POWER OF ATTORNEY DTD. 05/11/2008. P2: COPY OF THE FIR NO.506 OF 2008 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEYYATINKARA. P3: COPY OF THE ORDER IN CRL.M.C.NO.1200/2009 DTD. 06/04/2009. P4: COPY OF THE ORDER DTD. 27/04/2009 PASSED BY THE LEARNED MAGISTRATE. P5: COPY OF THE CMP.NO.2197/2009 DTD. 06/06/2009. P6: COPY OF THE PETITION FILED AS CMP NO.2497/2009 DTD.20/07/2009. P7: COPY OF THE APPLICATION DTD. 22/07/2009 FILED BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.21460 OF 2009 ------------------------------------------ Dated 9th September 2009 O R D E R Sreelatha, sister of the petitioner is the R.C owner of lorry No.KL-01-AL-894. Petitioner is her power attorney holder also. Alleging that the lorry was entrusted with third respondent, its driver on condition that he should remit the loan amount to the bank after deducting his salary and ply the lorry and third respondent in violation of the agreement failed to remit the loan amount, the bank proceeded against the sureties and the properties of Sreelatha and hence petitioner remitted the entire loan amount to the bank. A complaint was lodged before Sub Inspector of police, Nemom alleging that third respondent committed offences under Sections 406 and 420 of Indian Penal Code, based on which crime No.506/2008 was registered. During investigation lorry was seized and produced before the court. Petitioner filed a petition under Section 451 of Code of Criminal procedure for interim custody of the vehicle and third respondent also WPC 21460/09 2 filed a petition for interim custody. Learned Magistrate granted interim custody to the third respondent. Petitioner challenged that order before this court in Crl.M.C.1200/2009. Under Ext.P3 order this court quashed the order passed by the learned Magistrate and directed the learned Magistrate to dispose the petitions afresh. Learned Magistrate thereafter granted interim custody to the petitioner. But, the vehicular documents were retained by the third respondent. Petitioner therefore, filed a petition before the learned Magistrate to direct the third respondent to produce the vehicular documents. On his failure to produce the documents, a search warrant was issued at the instance of the petitioner, to seize and produce the vehicular documents. Though search was conducted, vehicular documents could not be seized or produced. This petition is filed under Articles 226 and 227 of Constitution of India for a writ of mandamus or direction to the second respondent, the Circle Inspector of Police to issue a certificate relating to the non availability of the registration certificate, permit and authorisation certificate of the vehicle on the basis of search WPC 21460/09 3 warrant and to pass appropriate order in C.M.P.2497/2009. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. Though notice was served on third respondent he did not appear. 3. Learned counsel appearing for petitioner submitted that there need not be a direction to the Magistrate to dispose C.M.P.2497/2009 and instead a direction to the Circle Inspector would be sufficient. 4. Assistant Sub Inspector of Police, Nemom police station filed a statement dated 21/8/2009 admitting that crime No.506/2008 registered for the offences under Sections 406 and 420 of Indian Penal Code and lorry No.KL-01-AL-894 was seized and later as directed by the learned Magistrate a search was conducted at the house of third respondent, for the vehicular documents and in spite of search, vehicular documents could not be traced out. 5. Learned counsel submitted that under Rule 97 of Kerala Motor Vehicles Rules, 1989 duplicate certificate would be issued by the registering authority on establishing loss or destruction of the WPC 21460/09 4 vehicular documents or that the registered owner is not in possession for the reason beyond his control to be specified and as interim custody of the vehicle was given to the petitioner, and in spite of the direction to produce the vehicular documents, it was not produced and even on search warrant vehicular documents could not be recovered, if such a certificate is obtained from the second respondent, petitioner could get a duplicate certificate as provided under Rule 97 of the Act. 6. Undisputed facts establish that sister of the petitioner is the R.C owner of the lorry No.KL- 01-AL-894. It was seized and produced before the learned Magistrate in crime No.506/2008. After Ext.P3 order, learned Magistrate granted interim custody of the vehicle to the petitioner on fulfilling the conditions provided therein. But, as it is a lorry, petitioner cannot ply the vehicle without vehicular documents. It is also clear that in spite of a search, as directed by the learned Magistrate, vehicular documents could not be recovered or produced before the court. These facts are admitted in paragraph 4 of the statement filed by the Assistant Sub Inspector of WPC 21460/09 5 Police. In such circumstances, writ petition is disposed directing second respondent to issue a certificate to the effect that in spite of the search conducted, the vehicular documents could not be recovered or produced from the house of third respondent. M.SASIDHARAN NAMBIAR, JUDGE. uj.