Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE12H DAY OF FEBRUARY201423RD MAGHA, 1935 Crl.Rev.Pet.No. 1092 of 2012 () -------------------------------- CRL. APPEAL6582005 of ADDL. SESSIONS COURT(FAST TRACK COURT NO.II-ADHOC), THRISSUR C.M.P. 16/2004 of J.M.F.C.,WADAKKANCHERRY REVISION PETITIONERS/APPELLANTS/COUNTER PETITIONERS : ------------------------------------------------------- 1. MOOSA S/O.MOIDEENKUTTY, KAKADATH HOUSE DESAMANGALAM VILALGE & DESOM, THRISSUR DISTRICT.
2. ABDUL RAHIMAN, S/O.MOYTHUTTI, KAKADATH HOUSE DESAMANGALAM VILLAGE & DESOM, THRISSUR DISTRICT. BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT/RESPONDENT/STATE : -------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM682031. BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON1102-2014, THE COURT ON1202-2014 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS, J.
----------------------------------------------- Crl. R.P. No.1092 of 2012 ----------------------------------------------- Dated 12th February, 2014 ORDER
The petitioners are the counter petitioners 1 and 2 in M.C.No.16 of 2004, which was a proceedings initiated under Section 446 of the Code of Criminal Procedure by the Judicial First Class Magistrate, Wadakkancherry on account of violation of one of the conditions in an order releasing the lorry bearing registration No.KL-7/P-3560 to the first petitioner. The 2nd petitioner stood as surety along with one Manoj, who is no more.
2. The above lorry owned by the first petitioner was seized by the Sub Inspector of Police, Wadakkanchery on the allegation that he was transporting sand from Bharathapuzha on 10.8.2003. The first petitioner filed a petition for release of the lorry. The said petition was allowed on certain conditions. One of the conditions was that he shall not use the same or permit anybody else to use the same for commission of similar offence. The first petitioner was directed to execute a bond for `5,00,000/- with two solvent sureties each for the like amount. The vehicle was released to the first petitioner upon executing Crl. R.P. No.1092 of 2012 2 the bond. Later, the Circle Inspector of Police, Wadakkancherry reported that the vehicle was involved in transporting river sand on 9.2.2004 and that the offence was reported to the Tahsildar. Thereafter, the first petitioner, the R.C. owner was imposed a fine of `15,000/- by the District Collector and the same was deposited by the first petitioner.
3. The learned Magistrate initiated proceedings suo motu under Section 446 of the Code of Criminal Procedure and issued show cause notice to the petitioners as to why the bond amount of `5,00,000/- shall not be realised from them. Search warrant was also issued to seize the lorry and produce before court. In furtherance of that order, the lorry was produced before the court. The learned Magistrate vide order dated 1.6.2005 issued an order imposing the bond amount as penalty. The above order was challenged by the petitioners herein by filing Crl. Appeal No.659/05 before the Sessions Court, Thrissur. The said appeal was disposed of by the learned Additional Sessions Judge (Fast Track Court No.II (Ad-hoc), Thrissur vide judgment dated 7.10.2009 whereby the order passed by the Crl. R.P. No.1092 of 2012 3 learned Magistrate was modified and the penalty was reduced to `1,00,000/- each. Against that judgment, counter petitioners 1 and 2 in M.C.No.16 of 2004 filed this Criminal Revision Petition.
4. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor.
5. The learned counsel for the revision petitioners produced a copy of the order of this Court in Crl.R.P.No.1926 of 2013 dated 19.11.2013. That Crl. Revision Petition was filed by the wife of the third counter petitioner in M.C.No.16 of 2004 on the file of the Judicial First Class Magistrate Court, Wadakkancherry. Crl.R.P.No.1926 of 2013 was allowed by this Court stating that there is no violation of the condition in the bond executed by the sureties, as the sureties executed a bond agreeing or promising to return the vehicle to the court as and when required and that condition is not violated by the sureties and that they are not liable for violation of the condition imposed in the order granting custody of the vehicle to the owner. In view of the order in Crl.R.P.No.1926 of 2013 dated Crl. R.P. No.1092 of 2012 4 19.11.2013, the proceedings initiated against the second revision petitioner Abdul Rahiman, who is only a surety is illegal and unsustainable in law.
6. The first respondent Moosa in M.C.No.16 of 2004 is the owner of the lorry involved in the occurrence. The third condition in the bond was that the lorry shall not be put to use for illegal sand mining. That lorry was subsequently involved in another case of illegal sand mining on 9.2.2004 and in that proceedings, the first revision petitioner appeared and pleaded guilty and paid `15,000/- as penalty and got the vehicle released.
7. Since penalty was imposed on the first revision petitioner and the same was remitted by him for violation of the third condition in the bond, I am of the view that there is no necessity to impose a further penalty for the first revision petitioner for violation of the third condition in the bond.
8. Accordingly, this Criminal Revision Petition is allowed and the order passed by the Judicial First Class Magistrate, Wadakkanchery in M.C.No.16 of 2004 and the Crl. R.P. No.1092 of 2012 5 judgment passed by the Additional Sessions Judge (Fast Track Court No.II - Ad hoc), Thrissur in Crl. Appeal No.658 of 2005 are set aside. The revision petitioners are allowed to get back the amount deposited before the court below as per the order of this Court in Crl.M.A.No.3775 of 2012. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (true copy)