High Court quashed an order dismissing a vehicle release application, holding prior dismissal was on default due to absence, directing fresh hearing on merits.
Annexure-A5 order setting aside; direction to Magistrate to dispose of application afresh.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941
Crl.MC.No.1292 OF 2019(B)
AGAINST THE ORDER/JUDGMENT IN CMP 176/2017 DATED 07-02-2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IX, KAKKANAD (TEMPORARY)
CRIME NO.832/2014 OF Palarivattom Police Station , Ernakulam
PETITIONER/ACCUSED:
JOSE THOMAS AGED 36 YEARS S/O.THOMAS, VETTILAKATTIL VEETTIL, DHAMODHAR APARTMENT, 29/401/1, KUNNETH LANE, THIRUVAMBADI P.O., THRISSUR - 680 003.
BY ADV. SRI.N.K.MOHANLAL
RESPONDENTS/COMPLAINANT/DEFACTO COMPLAINANT:
3 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682031
SMT V SREEJA- PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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ORDER
This is an application filed under Section 482 Cr.P.C. for quashing Annexure-A5 order passed by the Court of the Judicial First Class Magistrate -IX, Ernakulam.
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285/2015 under Section 452 Cr.P.C. for releasing the vehicle to him. The aforesaid application was made by him after the case was referred as 'mistake of fact' by the police. As per the order dated 29.09.2016, the learned Magistrate dismissed the aforesaid application for default.
285/2015 was not an order on merits and therefore, the reasons stated by the learned Magistrate for dismissing the
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second application cannot be sustained.
Magistrate in Crl.M.P No.285/2015 in Crime No.832/2014 reads as follows:
“Petitioner called absent. Counsel called absent, no application. No representation also. No steps taken as directed. The CMP need not be posted any further. The petition is therefore dismissed.”
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necessary parties.
832/2014 is set aside. The learned Magistrate is directed to consider and dispose of the aforesaid application afresh after hearing the petitioner and the prosecution and the 2nd respondent in that application, as expeditiously as possible.
Sd/-
R. NARAYANA PISHARADI
JUDGE
rpk
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APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF ORDER IN CRL.M.C.NO.529/2015 DATED 1/7/2015 OF THIS HONOURABLE COURT.
ANNEXURE A2 TRUE COPY OF PETITION CMP NO.285/15 DATED 9/11/2016 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURTI, KUNNUMPURAM.
ANNEXURE A3 TRUE COPY OF PROCEEDINGS IN CMP NO.285/15 IN CRIME NO.832/14, BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-IX, ERNAKULAM.
ANNEXURE A4 TRUE COPY OF PETITION CMP NO.176/2017 DATED 23/09/2015 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURTI, ERNAKULAM.
ANNEXURE A5 TRUE COY OF ORDER IN CMP NO.176/2017 DATED 07/02/2017 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURTIX, ERNAKULAM.
1 issue framed by the court
Whether a High Court can quash an order dismissing an application released on merits when the previous dismissal was based on default or absence?
Jose Thomas
Gireesh.M.J.
State of Kerala
R. Narayana Pisharadi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
