IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 WP(C).No. 27951 of 2007(C) -------------------------- LP.20/2005 of J.M.F.C, MANANTHAVADY .................... PETITIONER: ------------ SAINABA, W/O. IBRAI, EDAVETTAN HOUSE, KELLOOR P.O., MANANTHAVADY, WAYANAD DISTRICT. BY ADV. SRI.S.M.PRASANTH RESPONDENTS: ------------------ 1. THE DISTRICT MAGISTRATE/COLLECTOR, WAYANAD, CIVIL STATION, KALPETTA P.O., WAYANAD DISTRICT. 2. THE TAHSILDAR, MANANTHAVADY TALUK, MANANTHAVADY P.O., WAYANAD DISTRICT. BY ADV. SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 27951 of 2007 : 2 : APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE JUDGMENT IN C.C. NO. 56 OF 2002 DATED 24.06.2004 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, MANANTHAVADY. EXT.P2: TRUE COPY OF FINAL REPORT NO. 48 OF 2003 DATED 10.03.2003 FILED BY THE POLICE. EXT.P3: TRUE COPY OF THE ORDER ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE-I, MANANTHAVADY DATED 04.10.2006. EXT.P4: TRUE COPY OF THE COMMUNICATION NO. D.1-65/C/06-07/PNR DATED 27.10.2006 ISSUED BY THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE C.M.P. NO. 54 OF 2005 IN C.C. NO. 189 OF 2004 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-I, MANANTHAVADY. /True Copy/ P.A to Judge. V. RAMKUMAR , J. ========================== W.P.(C). No. 27951 of 2007 ========================== Dated this the 17th day of January, 2008. JUDGMENT The petitioner, who is the wife of one Ibrai who in turn is the 1st accused in C.C. No. 56/2002 arising out of crime No. 143/2001 of Vellamunda Police Station for offences punishable under Sections 143, 147, 353 r/w Section 149 IPC, seeks to quash Ext.P3 order dated 04.10.2006 passed by the Magistrate, Mananthavady under Section 83 Cr.P.C authorising the District Collector, Wayanad to attach the property of the said Ibrai. The petitioner also seeks to quash Ext.P4 notice issued by the 2nd respondent, the Tahsildar, Mananthavady pursuant to Ext.P3 order. 2. According to the petitioner her husband Ibrai has been missing since 14.04.2002 and she had lodged a complaint before the Vellamunda Police who registered a case as crime No. 173/2002 on 04.11.2002 under the caption “man missing” and the police, after investigation have eventually filed Ext.P2 final report to the effect that the whereabouts of the petitioner's husband could not be traced. The petitioner would have it that W.P.(C) NO. 27951/2007 : 2 : her husband was actually missing but he was wrongly treated as absconding by the learned Magistrate and steps were initiated for transferring his case to the Long Pending register. She would submit that even though the case has been transferred to the Long Pending Register and numbered as L.P. No. 20/2005, the proceedings under Section 82 and 83 Cr.P.C are not yet over and are being continued. She, therefore, claims to have moved the Magistrate by filing Ext.P5 application to the effect that her husband has been missing and the police were unable to trace his whereabouts and the co-accused in the case were tried and acquitted after trial by the Magistrate as per judgment dated 24.06.2004 in C.C. No. 56/2002 and had her husband been alive, he would have certainly turned up and taken advantage of the order of acquittal of the co-accused. She has, therefore, sought exemption from the attachment proceedings of the property enjoyed by her. 3. A perusal of Ext.P3 order passed under Section 83 (4) Cr.P.C by the learned Magistrate would indicate that even before the passing of the said order on 04.10.2006, the case was W.P.(C) NO. 27951/2007 : 3 : transferred to the Long Pending Register as L.P.No. 20/2005. It is not discernible as to how even before the completion of steps under Section 82 and 83 Cr.P.C, the case could be transferred to the Long Pending Register in flagrant violation of Rule 17 of the Kerala Criminal Rules of Practice. That apart, if the husband of the petitioner was really missing and his whereabouts are unknown even to the police, then he could not have been treated as absconding so as to justify the initiation of steps under Sections 82 and 83 Cr.P.C. The Judicial First Class Magistrate, Mananthavady will have to re-examine all these aspects before the property of the petitioner's husband is proceeded against. Accordingly, this writ petition is disposed of directing the Judicial First Class Magistrate, Mananthavady to dispose of Ext.P5 petition filed by the petitioner herein as C.M.P.No. 54/2005 in C.C. No. 189/2004 expeditiously and at any rate within two months of receipt of a copy of this judgment. All steps in pursuance of Ext.P3 order of attachment shall be kept in abeyance until the disposal of Ext.P3 petition by the learned Magistrate. In case the learned Magistrate discovers that the W.P.(C) NO. 27951/2007 : 4 : case against the petitioner's husband was transferred to the L.P Register even before the conclusion of the steps under Sections 82 and 83 Cr.P.C and in violation of Rule 17 of the Criminal Rules of Practice, Kerala it shall be open to the Magistrate to recall the orders passed in that behalf. Similarly, if the Magistrate is finally concludes that the petitioner's husband was not absconding but is only missing and there is no attempt at concealing him so as to screen him from punishment, the Magistrate shall pass appropriate orders in accordance with law by even re-tracing the steps taken under Section 82 and 83 Cr.P.C. This writ petition is disposed of as above. V. RAMKUMAR, JUDGE. rv W.P.(C) NO. 27951/2007 : 5 :