IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 Crl.MC.No. 2355 of 2008() ------------------------- CRIME NO. 532/07 IN CMP.1372/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... PETITIONER: ------------ MUHAMMED HASKER, S/O MUSTHAFA, VETTICHIRAYIL KUTTIPURATHODY HOUSE, KARIPOL P.O., MALAPPURAM DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R2. ANILKUMAR, S/O. CHANDRASEKHARAN AGED 36 YEARS, KALLADUKKIL VEETTIL KANARAMKODU, KARUPPURU VILLAGE THEKKUMKARA MURI, THIRUVANANTHAPURAM. (IMPLEADED AS PER ORDER DT. 6.8.08 IN CRL.M.A. 4151/08) R1 BY PUBLIC PROSECUTOR SRI. AMJAD ALI SRI.M.RAJAGOPALAN NAIR FOR ADDL.R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2355 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of August, 2008 O R D E R The petitioner is the Power of Attorney holder of one Iqbal, who is the registered owner of a Maruti Alto car bearing registration No.KL 02/X 5020 involved in Crime No. 532 of 2007 of Nedumangad Police Station. The defacto complainant (second respondent herein) is a financier. He alleged that accused 1 to 4 had committed offences punishable, inter alia, under Section 471 I.P.C. 2. The crux of the allegations is that producing forged photocopies of the registration certificate before the defacto complainant, accused 1 to 4 availed a loan of Rs.1,50,000/- from the defacto complainant. On that complaint filed before the police, F.I.R. was registered and investigation commenced. 3. In the course of investigation, the vehicle in question, which was in the possession of the petitioner, was seized by the police and the same was produced before the Magistrate. The Crl.M.C.No. 2355 of 2008 2 defacto complainant applied for interim release of the vehicle to his custody. The learned Magistrate, by order dt. 1.8.2007 in CMP 5741 of 2007 granted interim custody of the vehicle to the defacto complainant. The police had reported that they have no objection against such release. The petitioner, from whose custody the vehicle was seized, was not shown as a party in CMP 5741 of 2007. The learned Magistrate without realising the significance of non- impleadment of the petitioner as a party in CMP 5741 of 2007, directed release of the vehicle to the defacto complainant subject to conditions. The vehicle is thus in the possession of the defacto complainant/second respondent. 4. The petitioner later filed CMP 1372 of 2008 claiming release of the vehicle seized from his possession to his custody. It was then that the learned Magistrate realised that the petitioner's claim for possession of the vehicle had not been considered or raised earlier and that the order dt. 1.8.07 in CMP 5741 of 2007 was passed without notice to the petitioner. The learned Magistrate took note of the fact that the said order dt. 1.8.07 in CMP 5741 of 2007 was still in force and in these circumstances proceeded to dismiss the petition filed by Crl.M.C.No. 2355 of 2008 3 the petitioner. The petitioner claims to be aggrieved by the said order. 5. The learned Magistrate in paragraph 6 of the impugned order has taken note of a disturbing factor, which, according to the learned Magistrate, evidently suggested some collusion between the defacto complainant and the accused. The learned Magistrate had expressed her anguish in paragraph 6. But in the absence of challenge against the order dt. 1.8.2007 in CMP 5741 of 2007, the learned Magistrate was constrained to dismiss the application. 6. It is in these circumstances that the petitioner has preferred this petition to challenge the order dt. 26.3.2008 in CMP 1372 of 2008 dismissing his claim for return of the vehicle as also the earlier order dt. 1.8.2007 in CMP 5741 of 2007. The second respondent was subsequently arrayed as a party. He has appeared through counsel. Arguments have been heard of both counsel. 7. In the course of the discussions there is agreement between the parties that both the impugned orders can be set aside and both the petitioner and the second respondent can be permitted to stake their claim for release of the vehicle in their favour raised in CMP Nos. 1372 of 2008 and 5741 of 2007. I am satisfied that in the interests of Crl.M.C.No. 2355 of 2008 4 justice that is the best course that can be adopted by this Court now. 8. There is one aspect in which the parties are not in agreement. What arrangement for possession in respect of the vehicle must continue until the petitions are disposed of? Counsel are not in agreement on this aspect. I am satisfied, taking note of the totality of circumstances, that the interests of justice will be best served ideally by directing the second respondent to surrender possession of the vehicle which is in his possession now before the learned Magistrate within a period of ten days from this date. 9. In the result: a) This Crl.M.C. is allowed. b) The orders dt.26.3.2008 in CMP 1372 of 2008 and 1.8.2007 in CMP 5741 of 2007 are both set aside. c) The learned Magistrate is directed to dispose of both the petitions afresh after giving the parties opportunity to raise and substantiate all their contentions before the learned Magistrate. d) It is further directed that the second respondent, in whose possession the vehicle now is as per order dt. 1.8.2007, shall forthwith – at any rate within a period of ten days – surrender the vehicle before Crl.M.C.No. 2355 of 2008 5 the learned Magistrate. e) The learned Magistrate must make every endeavour to pass appropriate orders as expeditiously as possible, at any rate, within a period of one month from 5.9.2008, on which date both parties shall appear before the learned Magistrate without waiting for any further notice from the learned Magistrate. 10. A copy of this order shall be handed over to the counsel for the petitioner, who shall forthwith produce the same before the learned Magistrate. Needless to say, if the vehicle is not surrendered before the learned Magistrate by the second respondent within a period of ten days as directed above, appropriate coercive steps can be taken against the second respondent and his sureties by the learned Magistrate. (R. BASANT) Judge tm