IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Crl.Rev.Pet.No. 1216 of 2009(Y) ------------------------------- CRA.165/2008 of SESSIONS COURT, KASARAGOD CP.310/2000 of JUDL. MAGISTRATE OF FIRST CLASS-I, KASARAGOD (CMP 274/2008) .................... REVN. PETITIONER/APPELLANT/ACCUSED:- ------------------------------------------------ MOTTAYIL MOIDU, S/O.MOTTAYIL KHADER, AKKARA HOUSE, PERLADUKKA, KOLATHUR VILLAGE, KASARAGOD. BY ADV. MR. T.B.SHAJIMON MS. GOVINDU P.RENUKADEVI RESPONDENT/COMPLAINANT:- ---------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. MR. JAYAKRISHNAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1216 OF 2009 ---------------------------------------- Dated this the 9th day of June, 2009 ORDER Petitioner before me is accused No.1 in C.P.No.310/2000 of the court of learned Judicial First Class Magistrate -I, Kasaragod based on a complaint alleging offence punishable under Sections 143, 147, 148, 341, 324, 326, 307 read with section 149 of the Indian Penal Code. Either as he absconded or was not available for appearance in the court below for reason he stated, case was included in the L.P. register as LPC No.27/2004. In the meantime steps were also taken against him under Sections 82 and 83 of the Code of Criminal Procedure (for short, “the code”). Property of the petitioner was attached on 28.1.2000. Later petitioner surrendered in the court below and according to the learned counsel, petitioner was also released on bail. He then filed C.M.P.No.274/2008 to release the attached property and C.M.P.No.275/2008 under Section 5 of the Limitation Act to condone the delay in filing C.M.P.No.274/2008. Learned magistrate was of the view that Section 5 of the Limitation Act Crl.R.P.No.1216/09 2 (for short, “the Act”) has no application to criminal proceedings and dismissed C.M.P.No.274/08. Consequently, C.M.P.No.275/08 also was dismissed. Aggrieved, petitioner preferred Crl.Appeal No.165/2008 in the Sessions Court, Kasaragod. Learned Sessions judge went into the entitlement of petitioner to get the attached properties released to him, negatived his claim and dismissed the appeal. This revision is in challenge of the judgment in Crl.Appeal No.165/2008. Learned counsel for petitioner contends that finding of learned magistrate that Section 5 of the Act has no application to criminal proceedings is incorrect. He prayed that impugned orders be set aside. 2. I am unable to subscribe to the view expressed by learned magistrate that Section 5 of the Act has no application to Criminal Proceedings. Section 5 of the Act is applicable to any application whether other than an application under Order XXI of the Code of Civil Procedure. Section 5 is applicable to criminal proceedings also. Therefore, C.M.P.No.274/2008 was maintainable under Section 5 of the Act. The question whether delay has been properly explained or not is a different matter. As the courts below have not adverted to the Crl.R.P.No.1216/09 3 question whether delay in filing C.M.P.No.275/2008 is properly explained, I do not think it necessary to go into that question in this revision. Proper course is set aside judgment and orders under challenge and remit the matter to the learned magistrate for fresh consideration and disposal in the light of the decision of the Apex Court in Vimalben Ajitbhai Patel V. Vatslabeen Ashokbhai Patel [2008(2) KLT SN 9 Case No.10). In the result, this revision petition is allowed. The impugned judgment and orders are set aside and the matter is remitted to the court of learned Judicial First Class magistrate-I, Kasaragod for fresh consideration and disposal in the light of observation made above. Petitioner shall appear in the trial court on 1.7.2009. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1216/09 4