Kerala High Court
K.V. Baby vs Ammed Haji on 27 July, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937
Crl.Rev.Pet.No. 224 of 2015 ()
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(AGAINST THE JUDGMENT IN CRL.A.NO. 117/2013 OF SESSIONS COURT,
KALPETTA, WAYANAD)
CC.NO. 640/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II,
MANANTHAVADY
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REVISION PETITIONER/APPELLANT/DE-FACTO COMPLAINANT:
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K.V. BABY, AGED 62 YEARS, S/O.VARGHESE,
KANJIRATHINKAL HOUSE, MANJOORA POST,
PADINJARATHARA.
BY ADV. SMT.CELINE JOSEPH
RESPONDENT(S)/RESPONDENT/PW6 & STATE:
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1. AMMED HAJI,
S/O.IBRAHIM HAJI, ARAKKA HOUSE,
KATTAYAD POST, VELLAMUNDA.
2. THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.M.C.JOHN
R2 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 02-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
CRL.R.P.NO.224/2015
APPENDIX
PETITIONER'S ANNEXURES:
ANNEX 1 COPY OF THE STAY ORDER DATED 27/07/2012 IN
CRL.M.P.NO.1845/2012 OF THE SESSIONS COURT, KALPETTA
ANNEX II COPY OF THE AFFIDAVIT AND PETITION FOR CONDONATION OF
DELAY FILED BY THE REVISION PETITIONER.
ANNEX III COPY OF THE ORDER DATED 11/11/2014 IN CRL.R.P.NO.404/2014 OF
THIS HON'BLE COURT
ANNEX IV COPY OF THE ORDER DATED 11/12/2014 IN CRL.M.P.NO.2436/14 IN
CRL.APPEAL NO.117/2013 OF THE SESSIONS COURT KALPETTA,
WAYANAD.
RESPONDENT'S ANNEXURES: NIL
/TRUE COPY/
P.A.TO JUDGE
sts
B. KEMAL PASHA, J.
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Crl.R.P. No.224 of 2015
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Dated this the 2nd day of March, 2016
O R D E R
~ ~ ~ ~ ~ ~ Petitioner is the de facto complainant in CC No.640/2008 of the Judicial First Class Magistrate's Court-II, Mananthavady, for the offences under Sections 457 and 380 read with Section 34 IPC.
2. The prosecution case is that A1 and A2, with the common intention of committing theft, broke open the locks of the shutter of the room of the petitioner and committed theft of 440 Kgs. of dried pepper. Consequently, Crime No.95/2008 of Padinharathara Police Station was registered. In the course of investigation, a quantity of 270 Crl.R.P.224/2015 : 2 : Kg. of pepper was seized from the shop of PW6. Subsequently, the said pepper was released to the interim custody of the petitioner, under Section 451 Cr.P.C. During the course of the trial of the case, A2 absconded. The trial against A1 was proceeded with, after splitting up the case against A2. A1 was acquitted. Strangely, the learned Magistrate has chosen to pass an order directing the petitioner herein to produce the pepper or its sale proceeds before court and ordered the return of the same to PW6, through the judgment by which A1 was acquitted. In the judgment itself, the court below had observed that the case against A2 was split up and refiled as CC No.150/2009.
3. According to the petitioner, only when he received notice from the trial court directing him to produce the pepper or its sale proceeds, he came to know about the acquittal and the consequent order under Section 452 Cr.P.C. Immediately, the petitioner obtained certified copy of Crl.R.P.224/2015 : 3 : the judgment and preferred Crl.R.P. No.20/2012 before the Sessions Court, Kalpetta. The revision was pending for years. Subsequently, when it was realised that the said order ought to have been challenged through an appeal under Section 454 Cr.P.C., the revision was withdrawn and an appeal was filed along with an application for condoning the delay.
4. The Sessions Court, through Annexure-IV order, dismissed the application for condoning the delay of 1642 days in filing the Criminal Appeal. It is by challenging the said order, that the present Crl.R.P. has been filed.
5. It is merely on technical reasons that the court below has dismissed the application for condoning the delay, through Annexure-IV order. The court below has come to the conclusion that Section 14 of the Limitation Act has no application in the case. It is trite law that the Limitation Act is applicable for criminal proceedings also. Crl.R.P.224/2015 : 4 : The proceedings preferred by the petitioner by way of revision before the court below ought to have been dismissed by the court below at the threshold as an appeal is maintainable under Section 454 Cr.P.C. and no appeal has been preferred, within the meaning of Section 401(4) Cr.P.C. read with Section 399(2) Cr.P.C. When the court below entertained the criminal revision and finally it was dismissed, the said revision was entertained by the court below without jurisdiction and, therefore, the petitioner is entitled to get that period excluded under Section 14 of the Limitation Act.
6. Apart from all the above, the legality of the order passed by the learned Magistrate under Section 452 Cr.P.C. has to be considered. The said order passed by the learned Magistrate is apparently illegal, in view of Section 452 Cr.P.C. As per Section 452(1) Cr.P.C., such order could be passed only on the culmination of an inquiry or trial in any Crl.R.P.224/2015 : 5 : criminal court. Here, when the case against the 2nd accused was split up and refiled, it could not have been stated that it was the culmination of the trial. The trial has to continue as against the 2nd accused.
7. The property in question was entrusted to the interim custody of the petitioner under Section 451 Cr.P.C. Till the culmination of the trial and an order under Section 452 Cr.P.C.,the petitioner is legally empowered to keep that property in his possession. In such a context, the learned Magistrate ought not to have passed an order under Section 452 Cr.P.C. when the case against the 2nd accused was split up and refiled. Nobody has a case that the trial against the 2nd accused has been conducted and it culminated. Only on the culmination of the trial, an order under Section 452 Cr.P.C. can be passed. Matters being so, the court below ought to have taken a lenient view in the matter and condoned the delay. Therefore, Annexure-IV order is liable Crl.R.P.224/2015 : 6 : to be set aside and the delay is only to be condoned.
In the result, this Crl.R.P. is allowed by setting aside Annexure-IV order and allowing Annexure-II application. The delay in filing the Criminal Appeal has been condoned. The court below shall restore the Criminal Appeal and dispose it of, in accordance with law.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/02/03 // True Copy // PA to Judge