Kerala High Court
Philip Ninan vs State Of Kerala on 30 November, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 28TH DAY OF MAY 2014/7TH JYAISHTA, 1936
OP(Crl.).No. 4287 of 2013 (Q)
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CMP 1001/2006 of SESSIONS COURT,PATHANAMTHITTA
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PETITIONER :
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PHILIP NINAN, S/O.NINAN
CHERAVALIL ANU COTTAGE,
KUDAPPANAKUNNU THIRUVANANTHAPURAM,
REPRESENTED BY ANNAMMA PHILIP WIFE & POWER OF ATTORNEY,
HOLDER OF THE PETITIONER CHERAVALIL ANU COTTAGE ,
KUDAPPANAKUNNU THIRUVANANTHAPURAM.
BY ADV. SRI.P.HARIDAS
RESPONDENT :
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1. STATE OF KERALA
REPRESENTED BY THE SI OF POLICE, PERUMPATTY
MALLAPPALLY TALUK, PATHANAMTHITTA.
2. ANDAMMA JACOB, W/O.JACOB NINAN
KALKUZHIYIL CHERUVALIL HOUSE REPRESENTED BY
POWER OF ATTORNEY HOLDER SHAJAN VARGHESE,
S/O.VARGHESE KALKUZHIYIL CHERUVALIL HOUSE,
PERUMPATTY, MALLAPPALLY TALUK, PATHANAMTHITTA.
BY GOVERNMENT PLEADER SRI. R.JITHESH
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28-05-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BP
OP(Crl.).No. 4287 of 2013 (Q)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1: TRUE COPY OF THE COMMON JUDGMENT IN OS
NOS.21/04,22/04,23/04, 24/04 & 19/06 DATED 30-11-2009 OF THE SUB
COURT, THIRUVALLA.
EXT.P2: TRUE COPY OF THE COMMON ORDER ON CMP NO.1001/2006, CMP
NO.1092/2006 IN CC NO.870/2001 AND CMP NO.3135/2013 & CMP
NO.4121/2012 IN CC NO.217/2006 CC NO.870/2001 DATED 06-11-2013 OF
THE JFCM THIRUVALLA.
EXT.P3 - TRUE COPY OF THE MEMORANDUM OF APPEAL FILED AGAINST
COMMON ORDER IN CMP NO.4121/2012 DATD 22-11-2013.
EXT.P4 - TRUE COPY OF THE STAY PETITION FILED ALONG WITH EXHIBIT P3
DATED 22-11-2013
RESPONDENT(S)' EXHIBITS : NIL.
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//TRUE COPY//
P.A. TO JUDGE
BP
K.RAMAKRISHNAN, J.
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O.P(Crl.) No.4287 of 2013
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Dated this the 28th day of May, 2014
JUDGMENT
This is an application filed by the petitioner for issuing direction to the Sessions Court, Pathanamthitta regarding non- receipt of the appeals filed against the common order in C.M.P No.1001/2006, 1092/2006 in C.C No.870/2001 and C.M.P No.3135/2013 and C.M.P No.4121/2012 in C.C No.217/2006 of Judicial First Class Magistrate Court, Thiruvalla under Article 227 of the Constitution of India.
2. It is alleged in the petition that petitioner is the de facto complainant in C.C No.870/2001 of Perumpetty Police Station and after investigation, final report was filed and it was originally taken on file as C.C No.870/2001. There were two accused and the case against the second accused was tried and he was acquitted earlier. Case against first accused was split up due to his O.P.(Crl.) No.4287/2013 2 non-appearance and it was refiled as C.C No.217/2006 and, later, since he died, the case was closed as charge abated. As against the acquittal of the second accused, the petitioner filed revision before this court. No orders have been passed in respect of the stolen articles which were seized by the investigating officer while the case was disposed of, but later the learned Magistrate by the common order mentioned above disposed of the applications dismissing application filed by the de facto complainant and allowing the petition filed by the second respondent and articles were directed to be given to her. Aggrieved by the same, the petitioner filed appeals before the Sessions Court, Pathanamthitta u/s 452(4) of the Code of Criminal Procedure. But the office of the Sessions Court returned the appeals with endorsement that he is a third party and his name was not shown in the orders passed. Aggrieved by the same, the present petition has been filed seeking O.P.(Crl.) No.4287/2013 3 the following relief:
Pass an order directing the Sessions Court, Pathanamthitta to accept all the appeals by this petitioner challenging the common order of learned Magistrate in CMP No.1001/2006, CMP No.1092/2006 in C.C No.870/2001 and CMP No.3135/2013 and CMP No.4121/2012 in CC No.217/2006 (CC No.870/2001) of the Judicial First Class Magistrate Court, Thiruvalla and petition therein and my consider and pass orders on such petition within a time limit that may be fixed by this Hon'ble Court.
3. Though notice was sent to the second petitioner, she remained absent.
4. Heard the counsel for petitioner and Government Pleader.
5. Though the office has made some endorsement and it was returned, the counsel for petitioner should have requested the office of the District Court to place it before the presiding officer for hearing on the question of maintainability which was not done in this case. The question whether the petition is maintainable or O.P.(Crl.) No.4287/2013 4 not has to be decided on the judicial side by the Sessions Judge and the office has no authority to do the same. Under the circumstances this court feels that this case can be disposed of as follows:
If the petitioner re-presents the appeals returned before the Sessions Court within two weeks from today, with a request for placing before the Judge for adjudication on the question of maintainability then it will be deemed to have been filed within time and the learned Sessions Judge is directed to pass orders on that question as far as possible on the date of filing of the representation and placing before the Sessions Judge after hearing the counsel for petitioner. In the meantime the interim order passed by this court will be in force till the learned Sessions Judge passes order on the maintainability of the appeals as directed by this court.
O.P.(Crl.) No.4287/2013 5
With the above direction and observation the petition is disposed of.
Office is directed to communicate this order to the concerned court immediately. Office is also directed to give a copy of the order to the learned counsel for petitioner so as to enable him to produce the same before the Sessions Court.
K.RAMAKRISHNAN, JUDGE vdv