IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 Crl.MC.No. 1948 of 2011() --------------------- CMP.2248/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PEERMADE ................. PETITIONER / PETITIONER : ------------------------------------------ BABY VARGHESE, S/O. VARGHESE, MATTATHIL HOUSE, KUMILY, PEERMADE, IDUKKI DISTRICT. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENTS / COMPLAINANT : ------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BABU, S/O. KOCHUNARAYANAN, BHAGAVATHY PARAMBIL, KOLLAMPATTADA KARA, KUMILY, PIN - 685 509. R1 BY PUBLIC PROSECUTOR SRI. V. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 1948 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE - I : COPY OF THE LETTER DATED 16/6/2009. ANNEXURE - II : COPY OF THE SALE DEED NO. 2984/99. ANNEXURE - III : COPY OF THE APPLICATION IN C.M.P. NO. 2248/2009. ANNEXURE - IV : COPY OF THE ORDER DATED 9/6/2010 IN C.M.P. NO. 2248/2009 OF JFCM-II, PEERMADE. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P. JOSEPH, J. ---------------------------------------------- Crl. M.C No. 1948 OF 2011 ----------------------------------------------- DATED THIS THE 29th DAY OF JUNE, 2011 O R D E R Petitioner claims to have purchased 10.250 cents in Sy. No.17/2B-28 of Kumily village as per assignment deed No.2984 of 1999 executed by the accused in CC No.443 of 2004 and CC No.231 of 2004 of the Court of learned Judicial First Class Magistrate-II, Peermade. While he attempted to pay revenue for the said property some time in the year, 2009 he learned that the said property was attached by the order of learned Magistrate in the said cases. Thereon petitioner filed CMP No.2248 of 2009 before learned Magistrate under Section 84 of the Code of Criminal Procedure (for short “the Code”) requesting to lift the attachment. He contended that he had purchased the land in 1999 as aforesaid and that the accused had no subsisting right, title or interest in the said property to be attached on 23-11-2005. Learned Magistrate did not conduct any enquiry but verified the assignment deed produced by petitioner and Ext.C5 and Ext.C6 mahazers prepared by the officer who attached the property, observed that as per the said mahazer, petitioner was in possession of Crl. M.C No.1948/2011 -2- the property at the time of attachment in which case he should have been aware of attachment that even on 21-05-2005. Learned Magistrate was not inclined to accept the version of petitioner that he learned about the attachment only on 15-06- 2009 and dismissed CMP No.2248 of 2009. That order is under challenge. 2. Learned counsel for petitioner submits that since petitioner was not residing in the said property, he had no information about the attachment and the attachment came to his notice only when he attempted to pay revenue for the said land. Learned counsel also submitted that even Ext.C5 and Ext.C6 as observed by the learned Magistrate would show that petitioner was in possession of property even on the date of attachment which corroborated the claim of petitioner that he acquired the property as per assignment deed No.2984 of 1999. Learned counsel requested that the matter be remanded to the learned Magistrate for enquiry and fresh decision. Learned Public Prosecutor submitted that the impugned order is revisable under Section 397 (1) of the Code. 3. No doubt, being a final order, the order impugned is revisable under Section 397 (1) of the Code. It is seen that learned Magistrate has not conducted any enquiry and has Crl. M.C No.1948/2011 -3- simply rejected the petition on the ground of limitation. Learned Magistrate did not even bear in mind that even if it is assumed that petitioner has not laid the claim within 6 months from the date of attachment under Section 84 (1) of the Code, it was within the power of learned Magistrate to condone the delay as Sections 4 to 24 of the Limitation Act applied to a claim under Section 84 (1) of the Code as held by this Court in Pharma Kuries (P) Ltd. V. Soju (2006 (4) KLT 326). In the circumstances I am inclined to entertain this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure 4. As aforesaid, learned Magistrate has not conducted any enquiry in the mater except verifying the assignment deed and Exts.C5 and C6. Petitioner should get an opportunity to adduce evidence in support of his case and if necessary, seek condonation of the delay under Section 5 of the Limitation Act in the light of the decision referred supra. Since that enquiry is not conducted, I am inclined to interfere. This Crl. M.C is allowed. Annexure-IV order dated 09-06- 2010 on CMP No.2248 of 2009 of the Court of learned Judicial First Class Magistrate-II, Peermade is set aside CMP No.2248 of 2009 is remanded to the learned Magistrate for fresh decision Crl. M.C No.1948/2011 -4- after enquiry, giving opportunity to the petitioner to adduce evidence and if necessary, prefer application to condone the delay in the light of the decision aforesaid. Sd/- THOMAS P. JOSEPH JUDGE AMG True copy P.A to Judge