IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 25TH MAY 2007 / 4TH JYAISHTA 1929 Crl.MC.No. 1156 of 2007() ------------------------- AGAINST THE ORDER DATED 04/01/2007 IN CMP 115/07 22/1/07 IN CMP.7/2007 of CHIEF JUDITIAL MAGISTRATE COURT, THALASSERY CRIME NO.221/2006 OF CHAKKARAKKAL POLICE STATION .................... PETITIONER: ------------------ N.M.NAVAS M S/O.MAJEED, AGED 28 YEARS, RESIDING AT N.M.HOUSE, P.O.KOTTAMPALLY, KOTTAMUKKU,KANNUR. BY ADV. SRI.C.K.SREEJITH RESPONDENTS: --------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. S.H.O., CHAKKARAKKAL POLICE STATION, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/05/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.1156 of 2007 ---------------------------------------- Dated this the 25th day of May 2007 O R D E R The petitioner is the accused in a crime registered alleging commission of the offence punishable under Section 379 I.P.C. A motor cycle was seized by the police alleging that that was used for the commission of the crime. The petitioner filed an application for return of the said motor cycle. That petition was numbered as C.M.P.7/07. The same was not promptly disposed of and no orders were passed. This obliged the petitioner to file C.M.P.No.115/07 to advance hearing of C.M.P.No.7/07 and pass appropriate orders. 2. It is the grievance of the petitioner that no orders have been passed even now in C.M.P.No.7/07 and C.M.P.No.115/07. He further submits that the learned Magistrate had initially directed the petitioner to produce two solvent sureties with solvency certificates for Rs.50,000/- each. Later he was directed to produce title deed of the sureties also. 3. The learned counsel for the petitioner complains that the procedure adopted by the learned Magistrate is totally incorrect. It is, in these circumstances, prayed that appropriate directions may be issued. Crl.M.C.No.1156/07 2 4. Report of the learned Magistrate was called for. The report shows that C.M.P.No.115/07 is no more pending and the same has been disposed of. C.M.P.No.7/07 has not been finally disposed of yet, reports the learned Chief Judicial Magistrate. It only remains closed and has t be brought up for final disposal, it is submitted. 5. I must opine that the procedure adopted by the learned Magistrate is not correct. The report of the learned Magistrate shows that when the petition for release was filed, without disposing of the said petition, a direction was issued to the petitioner to produce two solvent sureties with solvency certificates for Rs.50,000/- and their original title deeds. Why such a direction was issued, paves my comprehension. 6. This, obviously, is incorrect. Appropriate orders have to be passed in C.M.P.No.7/07. Question of producing sureties with or without solvency certificates or title deeds can arise only if the petition is disposed and depending on the condition, if any, imposed by the learned Magistrate. After such order for release is passed, then only the petitioner need produce sureties and documents to prove their solvency. Here, even admittedly, the learned Magistrate has not passed any orders on the application for release of the vehicle. 7. I am, in these circumstances, satisfied that a positive direction deserves to be issued by the learned Chief Judicial Magistrate to pass appropriate orders in C.M.P.No.7/07 wherein the Crl.M.C.No.1156/07 3 petitioner has claimed release of the vehicle. Appropriate orders on merits shall be passed. Appropriate conditions can also be imposed. The petitioner can thereupon either comply with the order or challenge the order at his option. At any rate, the procedure adopted of not disposing of the petition for release of the vehicle and directing the accused earlier to produce sureties with solvency certificates and title deeds cannot be approved. First of all order must be passed on the question of the entitlement of the petitioners. Such order may be subject to appropriate conditions. Only thereafter, the question of the petitioner attempting to comply with the same can arise. 8. In the result, this Criminal Miscellaneous Case is allowed. The learned Magistrate is directed to pass appropriate orders in C.M.P.No.7/07 as expeditiously as possible, at any rate, within a period of ten days from the date on which a copy of this order is placed before the learned Magistrate. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr Crl.M.C.No.1156/07 4 Crl.M.C.No.1156/07 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF APRIL 2007