Allowed

P.P.Phalgunan v. State of Kerala

Kerala HC1 Aug 2018Crl.Rev.Pet/3165/2006

Case brief

AI extract

What is this about?

High Court allowed Criminal Revision Petition by sureties challenging dismissal of appeal against forfeiture of bond. Court condoned 779-day delay caused by bona fide filing of Writ Petition. Appeal remanded to Sessions Court for disposal.

What did the court decide?

Order of Sessions Court dismissing appeal and application to condone delay set aside. Appeal revived and delay condoned.

P.P.Phalgunan Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.UBAID

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WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940

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Crl.Rev.Pet.No. 3165 of 2006

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JUDGMENT IN CRA 458/2003 of SESSIONS COURT, THALASSERY DATED 2.6.2006 ORDER IN C.M.P. No.653/2001 OF CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY DATED 19.3.2001

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REVISION PETITIONER(S)/APPELLANTS/SURETIES :-

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1. P.P. PHALGUNAN, S/O. KOTTAN, RAMBOTH HOUSE, KANHIRODE AMSOM DESOM, KANNUR.

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2. P. PAVITHRAN, S/O. SHANKARAN, PONTHAN HOUSE, KANHIRODE AMSOM DESOM, KANNUR.

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BY ADV.SRI.P.K.RAVISANKAR

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RESPONDENT(S)/STATE :-

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STATE OF KERLA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.C.K.PRASAD

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.UBAID, J.

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Crl.R.P. No.3165 of 2006

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Dated this the 1^st day of August 2018

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O R D E R

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The revision petitioners herein are aggrieved by the order of the Court of Session, Thalassery dated 2.6.2006, dismissing the appeal brought by them under Section 449 Cr.P.C. as Crl.A. No.458/2003, consequent to the dismissal of the application filed by them as Crl.M.P. No.1389/2003 for condoning the delay of 779 days in filing the appeal.

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The issue is concerning the interim custody of a vehicle given to one Padmavathy from the Chief Judicial Magistrate's Court under Section 451 Cr.P.C. The revision petitioners herein are the sureties of Padmavathy. The said order was challenged before this Court by the rival claimant, and in the said proceeding, the order of the court below was set aside, and the vehicle was ordered to be given to the custody of the rival claimant. In compliance of the directions of this Court, the learned Chief Judicial Magistrate directed Padmavathy to produce the vehicle in court. When Padmavathy and her sureties failed to produce the vehicle in court, the

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Crl.R.P. No.3165 of 2006

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learned Chief Judicial Magistrate passed orders on 19.3.2001 forfeiting the bond executed by the sureties, and accordingly, distress warrant was issued. Against the said order, the sureties filed appeal before the Court of Session as Crl.A. No.458/2003 along with an application to condone delay. The application to condone delay was dismissed by the learned Sessions Judge on 2.6.2006 and consequently, the appeal was also dismissed. Now, the sureties are before this Court in revision, challenging the said order of the learned Sessions Judge.

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On a perusal of the materials, I find that the appeal of the revision petitioners before the Court of Session was delayed only because, they happened to prosecute a Crl.M.C. before this Court, bonafide, as against the order of the trial court dated 19.3.2001. It appears that instead of filing appeal under Section 449 Cr.P.C., the sureties filed Crl.M.C. before this Court under Section 482 Cr.P.C. That was dismissed by this Court. It was thereafter, the sureties filed appeal before the Court of Session under Section 449 Cr.P.C., and thus happened the delay of 779 days in filing the appeal. I find that it was a mistake on

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Crl.R.P. No.3165 of 2006

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the part of the revision petitioners to file a petition before this Court under Section 482 Cr.P.C., instead of filing an appeal challenging the order passed by the learned Magistrate under Section 446 Cr.P.C. These aspects could not be presented before the court below, when the delay application came up for consideration, and in such a situation, the application happened to be dismissed. It was submitted that the matter was taken up before the Hon'ble Supreme Court, and as permitted by the Supreme Court, the vehicle was in fact produced before the trial court by Padmavathy, who got interim custody. In such a situation, it would appropriate, in the interest of justice, to direct the trial court to hear and dispose of the appeal judiciously. If the person, who got custody of the vehicle has already complied with the directions, any harsh steps or procedure may not be required.

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In the result, this revision petition is allowed. Accordingly, the order of the court below (appellate court) dated 2.6.2006, dismissing Crl.M.P. No.1389/2003, and also the consequent order of dismissal of Crl.A. No.458/2003 on the same day will stand set aside, and the Crl.A. is ordered to be

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Crl.R.P. No.3165 of 2006

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revived in the appellate court. The delay stands condoned by this Court. The appeal shall be disposed of, in accordance with law, by the appellate court, on a consideration of the various aspects, including the compliance of the order by Padmavathy. Let the revision petitioners appear before the court below on

29.8.2018.

Sd/P.UBAID JUDGE

//TRUE COPY//

P.A. TO JUDGE

Jvt/1.8.2018

P.P.Phalgunan v. State of Kerala

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P.P.Phalgunan v. State of Kerala

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