IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.MC.No. 3718 of 2008() ------------------------- M.C.NO.10/2004 IN S.C.NO.638/99 - SC.209/2007 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CP.76/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... PETITIONER(S): COUNTER PETITIONERS ---------------------------------- 1. THANKKAPPAN, S/O. JOSEPH ROSE, VILAYIL, THAZHUTHAELA CHERRY, ADICHANELLOOR, KOLLAM DISTRICT. 2. ANIYAMMA, W/O. THANKAPPAN ROSE VILLAYIL, THAZHUTHALA CHERRY, ADICHANELLOOR, KOLLAM DISTRICT. BY ADV. SRI.RAJIT SRI.M.L.SURESH KUMAR RESPONDENT(S): STATE -------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE TAHSILDAR, REVENUE RECOVERY OFFICE, KOLLAM. BY P.P. SRI.P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3718 of 2008 ------------------------------------------------- Dated this the 13th day of October, 2008 ORDER The petitioners in this Crl.M.C. assail an order passed by the learned Sessions Judge (Adhoc-II), Kollam, on the basis of which distress warrants have been issued against the petitioners. 2. The petitioners were the sureties of the sole accused in a prosecution under Sec.55(a) of the Kerala Abkari Act. According to the petitioners, attempts are being made to recover certain amounts on the strength of an order passed on 31/12/04 directing to issue distress warrants against the petitioners and the said accused. In short, the contention is that no proper order under Sec.446 Cr.P.C. has been passed and an attempt is being made to recover the amount. According to the petitioners, they applied for copy of the order, if any, passed under Sec.446 Cr.P.C. in M.C.No.10/04. But Crl.M.C. No. 3718 of 2008 -: 2 :- they were informed that no such orders under Sec.446 Cr.P.C. had been passed. They point out that even though M.C.No.10/04 was registered on 31/12/04 on the very same date, directions were issued to issue distress warrants against the petitioners as also the accused who absconded. 3. The learned counsel for the petitioners, in these circumstances, submits that the petitioners have come to this Court with this Crl.M.C. under Sec.482 Cr.P.C. as no proper order under Sec.446 Cr.P.C. has been passed which could be appealed against under Sec.449 Cr.P.C. 4. On a perusal of the documents produced along with this petition and on a consideration of the submissions made at the Bar, it was felt that a report of the learned Sessions Judge must be called for. The report of the learned Sessions Judge was called for and that shows that an order dated 31/12/04 was passed. That was the date on which M.C.No.10/04 was registered. The order in question reads as follows: “Issue distress warrant against counter petitioners 1 to 3 for realising the bail amount. Await report 2.3.2005.” Crl.M.C. No. 3718 of 2008 -: 3 :- I am in ready agreement with the learned counsel for the petitioners that this cannot be reckoned as a proper order under Sec.446 Cr.P.C. which is appealable under Sec.449 Cr.P.C. I am satisfied, in these circumstances, that the impugned order dated 31/12/04 as also all further steps taken in pursuance of the said order deserve to be quashed. 5. In the result: (a) This Crl.M.C. is allowed. (b) The impugned order dated 31/12/04 in M.C.No.10/04 in S.C.No.638/99 passed by the learned Sessions Judge (Adhoc-II), Kollam, is hereby quashed. (c) The learned Sessions Judge shall now dispose of M.C.No.10/04 afresh in accordance with law. (d) The petitioners shall appear before the learned Sessions Judge to continue the proceedings on 10/11/08. Appropriate orders under Sec.446 Cr.P.C. shall be passed by the learned Sessions Judge. The petitioners shall, of course, be entitled to point out to the court that the accused has already appeared, has been tried and acquitted by the Sessions Court as per judgment dated 25/4/07 in S.C.No.209/07. Appropriate Crl.M.C. No. 3718 of 2008 -: 4 :- decision shall be taken by the learned Sessions Judge taking into account all relevant circumstances. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge