IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.MC.No. 842 of 2011() ------------------------ CMP.464/2011 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER: ------------------- ASMABI P.M., REPRESENTED BY POWER OF ATTORNEY HOLDER M.PRABHAKARAN, S/O.KRISHNAN NAIR, PALODATH HOUSE, ATHAYAKKUNNU, KOTTALI P.O., KANNUR DISTRICT. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT: ----------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. REKHA C. NAYAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SS/- V.K. MOHANAN, J. ................................................ Crl. M.C. No.842 of 2011 ............................................................. Dated this the 18th day of March, 2011 O R D E R This is the 2nd time, the petitioner is forced to approach this court for the release of a vehicle. 2. The attempt of the petitioner, to release the vehicle by filing an application of CMP No.4398/2011 in Crime No.894/2010 of Kannur town Police Station, has failed since the learned Magistrate was not inclined to release the vehicle and consequently the petitioner approached this court filing Crl.M.C.No.21/2011. After hearing the petitioner as well as the learned Public Prosecutor, the said Crl.M.C.No.21/2011 was disposed of by this court by order dated 21.01.2011, directing the learned Magistrate to issue an order, releasing the vehicle in question on his furnishing bank guarantee for the value of the vehicle to be fixed by the leaned Magistrate and other conditions which deems proper to be imposed by the learned Magistrate. 3. The present grievance of the petitioner in this Crl. M.C. No.842/2011 2 Crl.M.C is that, though there was an order of this court directing the learned Magistrate to release the vehicle on furnishing bank guarantee, the learned Magistrate without application of mind issued Annexure-G order, by which, in- effect denied the enjoyment of fruit of the order of this court. Since, learned Magistrate in the impugned order directed the petitioner to produce bank guarantee for `.5,00,000/-(Rupees five lakhs only), for the release of the vehicle/autorickshaw bearing Registration No.KL-13 A/1497 - 1992 model. 4. Heard the counsel for the petitioner as well as learned Public Prosecutor. 5. The Hon'ble Apex Court in its decision in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638), has already been directed to see that vehicles involving in the criminal cases shall not be allowed to kept either under the judicial custody or police custody or under the custody of the other investigating agencies given by such practice, the vehicles being ruined. In the present case, the only allegation is that the vehicle in Crl. M.C. No.842/2011 3 question has plied in the Kannur Municipal area by showing a fake number, claiming to have assigned by the Kannur Municipal authorities and thereby committed the offences punishable under Sections 465, 418 and 471 of I.P.C. Even at the time of hearing Crl.M.C No.21/2011, the prosecution has no case that, the vehicle in question involved in any serious crime either for the purpose of committing any I.P.C offences or any other offences or involved for transporting any contraband article. In the light of the above facts and in view of the decision of the apex court cited supra, the learned Magistrate ought to have released the vehicle by allowing the petition that CMP No.4398/2010 in Crime No.894/2010 of Kannur Police Station. But the same was not done, overlooking the letter and spirit of the judgment of the Hon'ble apex court. 5. However, by order dated 21.01.2011, in Crl.M.C No.21/2011, this court had directed learned Magistrate to release the vehicle by incorporating appropriate conditions and furnishing of bank guarantee and the amount has to be fixed by the learned Magistrate. But by the impugned order, Crl. M.C. No.842/2011 4 among other conditions, the first condition is to the effect that the petitioner shall produce bank guarantee of `.5,00,000/- for releasing the vehicle, which is a 1992 model autorickshaw. I am unable to understand, on what criteria the learned Magistrate had fixed such an amount for the releasing of the autorickshaw pertained to the 1992 model. So the above order is absolutely arbitrary in nature and unsustainable in law and facts. 6. In the matter of dispensation of criminal justice, the courts shall not impose unworkable and unreasonable conditions, which will amount to the denial of justice, which is not expected. More particularly in the light of the facts and circumstances involved in the case, the learned Magistrate ought not have incorporated such arbitrary amount. The said order could be upheld, if the learned Magistrate had fixed the said amount on the basis of any expert opinion or report from any competent authority. The petitioner herein had produced a valuation report along with this petition furnished by one C.K.Sujith, Insurance surveyor/ Loss Assessor, showing/recommending the Crl. M.C. No.842/2011 5 present maximum value of the vehicle in question as `.4,000/-(Rupees Four thousand only). But I am not propose to rely upon the above valuation certificate in arriving the approximate correct value of the vehicle in question. Therefore, according to me, it is only just and proper to direct the learned Magistrate to obtain a report from a competent officer of a Motor Vehicles Department, regarding the present market value of the vehicle in question and to fix the bank guarantee amount accordingly. In the result, this Criminal M.C. is allowed, setting aside the first condition of Annexure-G impugned order and learned Magistrate is directed to issue a fresh order, fixing the bank guarantee after obtaining a valuation report from a competent officer of the Motor Vehicles Department from Kannur. Learned Magistrate is directed to expedite the matter as expeditiously as possible and pass appropriate orders within one month from the date of receipt of a copy of this order, which will be produced by the petitioner. The learned Magistrate is directed to furnish periodical interim report to this court, showing the steps taken by him Crl. M.C. No.842/2011 6 after receipt of this order and the progress thereon, without any failure. Sd/- V.K. MOHANAN, JUDGE. SS/. //True Copy// P.A to Judge