Rosamma Joseph Vs. State of Kerala

Decided On : Feb-21-2014

Court : Kerala

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
Code Context


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		'Judgement' => array(
			'id' => '1130918',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Rosamma Joseph',
			'authreffered' => null,
			'casename' => 'Rosamma Joseph Vs. State of Kerala',
			'casenote' => '',
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			'counselplain' => null,
			'counseldef' => null,
			'court' => 'Kerala',
			'court_type' => 'HC',
			'decidedon' => '2014-02-21',
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			'favorof' => null,
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			'judge' => 'HONOURABLE MR. JUSTICE K.RAMAKRISHNAN',
			'judgement' => '<p>IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE21T DAY OF FEBRUARY20142ND PHALGUNA, 1935 Crl.MC.No. 5651 of 2013 () --------------------------- CRL.M.P.NO. 498/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM --------------------- PETITIONERS / RESPONDENT IN CRL.M.P.498/2012 OF C.J.M. KOTTAYAM : ------------------------------------------------------------------------------------------------------------ 1. ROSAMMA JOSEPH, W/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, POOVARANY P.O., KOTTAYAM DISTRICT.</p><p>2. KIRAN JOSE S/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, POOVARANY P.O., KOTTAYAM DISTRICT. BY ADVS.SRI.PRAVEEN K. JOY SRI.G.MANU KRISHNAN SRI.T.A.JOY SRI.NIXON PAUL SRI.DINESH R.SHENOY RESPONDENTS/PETITIONERS IN CRL.M.P. 498/2012 AND STATE : --------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM.</p><p>2. STATE BANK OF TRAVANCORE ETTUMANNUR BRANCH POOVARANNY REP. BY THE AUTHORISED OFFICER CHIEF MANAGER (A.D.V.) REGION III ZONAL OFFICE, KOTTAYAM. R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE P. R2 BY ADV. SRI.SATHISH NINAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON1202-2014, THE COURT ON2102-2014 PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 5651 of 2013 () ------------------------------------- APPENDIX PETITIONERS' ANNEXURES : ------------------------------------------- ANNEXURE I- TRUE PHOTOCOPY OF THE CRIMINAL M.P.498/2012 DT. 3.4.2012 OF THE PETITION, BEFORE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE II- TRUE PHOTOCOPY OF THE PETITION IN C.M.P.2646/2013 IN CRL.M.P.498/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE III- TRUE PHOTOCOPY OF THE THANDAPER RECORD DT. 1.11.2013 OF POOVARANNY VILLAGE AND SKETCH. ANNEXURE IV- TRUE PHOTOCOPY OF THE PROFESSIONAL CERTIFICATE DT. 23.5.2011 OF VILLAGE OFFICER, POOVARANNY. ANNEXURE V- TRUE COPY OF THE RELEVANT PAGES OF THE CITATION, 2013(4) KLT SN39CASE NO.34) MADRAS (F.B) IN AROCKIYARAJ-VS-CHIEF JUDICIAL MAGISTRATE DT. 27.8.2013. ANNEXURE VI- TRUE CERTIFIED COPY OF THE PROCEEDINGS AND </p>ORDER<p> DT. 4.11.2013 IN C.M.P.2646/2013 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE VII- TRUE RELEVANT PAGE OF THE DECISION REPORTED IN20133)KLT366(HOUSING DEVELOPMENT FINANCE CORPORATION LTD. VS. GOVERNMENT OF KERALA) IN WP(C) NO.16628 OF2013DT. 5.7.2013 OF THIS HON'BLE COURT. ANNEXURE VIII- TRUE PHOTOCOPY OF THE PROCEEDINGS DATED411.2013 IN C.M.P. 498/2012 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE IX- TRUE PHOTOCOPY OF THE NOTICE DATED2211.2013 OF ADVOCATE COMMISSIONER AS PER </p>ORDER<p> IN C.M.P.498/2012 OF C.J.M. KOTTAYAM. RESPONDENT(S)' ANNEXURES : ------------------------------------------------ ANNEXURE R2(a) COPY OF THE </p>JUDGMENT<p> DATED222-2013 IN W.A. NO. 302/2013 OF THIS HONOURABLE COURT. ANNEXURE R2(b) COPY OF THE </p>ORDER<p> PASSED BY THE DEBTS RECOVERY TRIBUNAL,ERNAKULAM IN IA NO. 1043/2013 IN SA NO. 273/2013. ANNEXURE R2(c) COPY OF THE </p>JUDGMENT<p> DATED1811-2013 IN WP(C) NO. 28174/2013 OF THIS HONOURABLE COURT. ANNEXURE R2(d) COPY OF THE </p>JUDGMENT<p> DATED1812-2013 IN WA NO. 1860/2013 OF THIS HONOURABLE COURT. //TRUE COPY// P.S. TO JUDGE Mn &quot;CR&quot; K. RAMAKRISHNAN, J.</p><p>................................................. Crl.M.C.No.5651 of 2013 &amp; Crl.M.C.No.1041 of 2014 .................................................. Dated this the 21st day of February, 2014. </p></p>ORDER<p><p> Crl.M.C.No.5651/2013 was filed by the counter petitioners in Crl.M.P.No.498/2012 on the files of the Chief Judicial Magistrate Court, Kottayam, to set aside the order passed thereon under Section 482 of the Code of Criminal Procedure.</p><p>2. Crl.M.C.No.1041/2014 was also filed by the counter petitioners in CMP.No.132/2012 on the files of the Chief Judicial Magistrate Court, Palakkad, to quash the order passed thereon under Section 482 of the Code of Criminal Procedure.</p><p>3. In both these cases, the 2nd respondent Bank filed application before the Chief Judicial Magistrate Court in respective places seeking assistance to get delivery of the secured interest invoking Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act'). In both these cases, properties of the petitioners were mortgaged to the banks as security for availing loan and they Cr.MC.Nos.5651/13&amp;1041/14 2 have committed default. Thereafter, notice under Section 13(2) of the SARFAESI Act was sent to them. Since they have not sent any objection or paid the amount within the specified time provided under Section 13 of the Act, they filed applications seeking assistance of the Chief Judicial Magistrate to take possession of the property secured. The learned Chief Judicial Magistrate after satisfying the contents of the applications and the documents produced, appointed an Advocate Commissioner to take possession of the property and deliver the same to the bank. The action of the Chief Judicial Magistrate appointing Advocate Commissioner to deliver the property is being questioned before this Court by the petitioners in both these cases.</p><p>4. In both these cases, the common question raised by the respective learned counsel for the petitioners was regarding maintainability of the application before the Chief Judicial Magistrate Court under Section 14 of the SARFAESI Act. Since common question arose for consideration in both these cases, these petitions were disposed of by this Court by a common judgment.</p><p>5. The counsel for the petitioners submitted that by virtue of Section 14 of the SARFAESI Act only Chief Metropolitan Cr.MC.Nos.5651/13&amp;1041/14 3 Magistrate or District Magistrate alone is entitled to entertain the application for this purpose. So, the Chief Judicial Magistrate has no jurisdiction to entertain the petition under Section 14 of the SARFAESI Act. Further, they have also argued that, wherever the Judicial First Class Magistrate has to exercise power, it has been specifically mentioned under the SARFAESI Act and so it cannot be said that the legislature was not aware of the difference between Chief Judicial Magistrate and Chief Metropolitan Magistrate while using the terminology Chief Metropolitan Magistrate or District Magistrate in that section. According to the learned counsel, it is settled law that the courts cannot supply casus omissus and purposive interpretation also is not available for the purpose of supply of casus omissus in such cases as there is no ambiguity in the terminology used in the section. They have relied on the Full Bench decision of the Madras High Court in K. Arockiyaraj &amp; Others v. The Chief Judicial Magistrate, Srivilliputhur, Virudhunagar District &amp; Others (CDJ2013MHC3970, State of Mizoram v. Biakchhawna (1995 (1) SCC156, Chandra Kishore Jha v. Mahavir Prasad &amp; Others (1999 (8) SCC266, Babu Varghese &amp; Others v. Bar Council of Kerala &amp; Others (1999 (3) SCC422 and State of West Bengal v. M/s. B.K. Cr.MC.Nos.5651/13&amp;1041/14 4 Mondal &amp; Sons (AIR1962SC779 in support of the case and they wanted this Court to refer the matter to a Larger Bench to consider the question again as, according to them, the earlier two Division Benches of this Court did not consider the aspects, now considered by the Madras High Court and Bombay High Court in this regard.</p><p>6. On the other hand, the counsel for the respondents in both the cases submitted that it is clear from the intention of the Legislature that enacting the present Act itself was to provide a speedy remedy for enforcing the right of the financial institutions over their secured interest for realisation of the amount and wherever Chief Metropolitan Magistrates are not available, Chief Judicial Magistrates are vested with the power to do all the works of the Chief Metropolitan Magistrate. Two Division Benches of this Court in Muhammed Ashraf &amp; Another v. Union of India &amp; Others (2008 (3) KHC935 and Radhakrishnan V.N. v. State of Kerala &amp; another (ILR2008(4) Ker. 863) had held that the Chief Judicial Magistrates are empowered to do all the works of the Chief Metropolitan Magistrate in non metropolitan areas and in the latter decision, the request for reference to a Larger Bench for considering the same purpose was declined aswell. So, under the circumstances, Cr.MC.Nos.5651/13&amp;1041/14 5 there is no merit in the submission made by the counsel for the petitioners.</p><p>7. It is an admitted fact that in both these cases, the banks have filed applications before the respective Chief Judicial Magistrate Courts namely Kottayam and Palghat for enforcing their secured interest invoking Section 14 of the SARFAESI Act. Section 14 of the SARFAESI Act (as stood prior to amendment) reads as follows:</p><p>14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset:-(1) Where the possession of any secured assets is requird to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him- (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. (2) for the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any Cr.MC.Nos.5651/13&amp;1041/14 6 authority.</p><p>8. Though Section 14 of the SARFAESI Act was amended by Amendment Act 1 of 2013, which came into force from 4.1.2013, there is no change made by the amendment to Section 14(1) of the SARFAESI Act.</p><p>9. It is true that, in Section 14 it has been mentioned that, the application has to be filed before the Chief Metropolitan Magistrate or District Magistrate. In the decision reported in Arockiyaraj's case (supra), the Full Bench of the Madras High relying on the decisions of Bombay High Court in IndusInd Bank Ltd. v. The State of Maharashtra (CDJ2008BHC520 and Arjun Urban Co-operative Bank Ltd., Solapur v. C.J.M. Solapur Court [2009 (2) D.R.T.C431(Bom)] held that only Chief Metropolitan Magistrates or District Magistrates are empowered to entertain the application under Section 14 of the SARFAESI Act. But, the Division Bench of this Court in Muhammed Ashraf &amp; Another v. Union of India &amp; Others (2008 (3) KHC935 has held that the powers of the Chief Judicial Magistrate in non metropolitan area and the Chief Metropolitan Magistrate in metropolitan area are one and the same and the application under Section 14 of the SARFAESI Act can be entertained by the Chief Judicial Cr.MC.Nos.5651/13&amp;1041/14 7 Magistrate in a non metropolitan area. The question whether this is casus omissus was considered by the Division Bench in para 5 of the decision which reads as follows: &quot;5. Learned counsel for the petitioners argued that so long as the word 'Chief Judicial Maistrate' is not mentioned in S.14 of the Securitisation Act, merely beause Chief Metropolitan Magistrate is mentioned in S.14, it cannot be stated that Chief Judicial Magistrate in non metropolitan areas also has the power under S.14. Relying on the decison of the Hon'ble Supreme Court in M/s. Unique Butyle Tube Industries Pvt. Ltd. v. U.P. Financial Corporation and Others, 2003 HKC852 2003 (2) SCC455 2003 (113) Comp Cas 374:</p><p>2003. All LJ427 AIR2003SC2103it was argued that the Court cannot supply the omissions by the Legislature. While interpreting a provision, the Court only interprets the law and cannot legislate it. It is for the legislature to amend, modify or repeal it if it is deemed necessary. By the principle of casus omissus, Court cannot supply the law. In the above case, the Hon'ble Supreme Court was considering the Recovery Debts Due to Banks and Financial Institutions Act (RDBI Act). Under S.34 (1) of the above Act, it was mentioned that the provisons of that Act have overriding effect over other Acts. But, the question is whether RDBI Act was enacted in addition to other acts. Sub-section (2) of S.34 of the above Act provides that it is in addition to certain specified Acts like Financial Corporation Act etc. Uttar Predesh Public Monies (Recovery of Dues )Act, 1972 (UP. Act) was not included under S.34(2)of the RDBI Act. Therefore, the Hon'ble Supreme Court has held that Financial Corporation can approach for recovery of dues under the RDBI Act or under the Financial Corporation Act, but, not under the U.P.Act, 1972 as it was not enacted in additon to the U.P.Act, 1972. Here, the position is entirely different. The question is whether the term &quot;Chief Metropolitan Magistrate&quot; in metropolitan areas will include Chief Judicial Magistrate in non metropolitan areas. We are of the view that legislation has to be understood Cr.MC.Nos.5651/13&amp;1041/14 8 in a reasonable manner. In the context of the definition in the Cr.PC, it can be gathered that a Chief Judicial Magistrate in non metropolitan area and Chief Metropolitan Magistrate in metropolitan area are used in legal parlance similarly. As held in Holmes v. Bradfield Rural District Council, 1949 (1) All ER381(page 384) and Nasiruddin v. State Transport Appelate Tribunal, 1975 (2) SCC6711976 (1) SCR505: AIR1976SC331(page 338) this Court has to adopt 'just reasonable and sensible' interpretation. In this connection, we refer to the following observations of the Denning L.J.</p><p>in Seaford Court Estates Ltd. v. Asher, 1949 (2) All ER155 p. 164 (CA): &quot;When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases&quot;. Though the above view was criticised by House of Lords in Magor and St. Mellons R.D.C v. Newport Corporation, 1951 (2) All ER839(HL), it was quoted with approval by the Hon'ble Supreme Court in M. Pentiah v. Muddala Veeramallapa, 1961 (2) SCA249 1961 (2) SCR295 1963 (1) SCJ768 AIR1961SC1107 Bangalore Water Supply v. A. Rajappa, 1978 (2) SCC213 1978 Lab IC467 1978 (1) Lab LJ349 1978 SCC (Lab) 215:</p><p>1978. CLNR96 1978 (1) SCJ481:AIR1978SC548at.p.552 ,561, NEPC Micon Ltd.v.Magna Leasing Ltd. 1999 KHC488 1999 (2) KLT SN45 1999 (2) KLJ59:</p><p>1999. (2) KLJ NOC17 1999 (4)SCC253 AIR1999SC1952 p. 1957) etc. But, House of Lords in Inco Europe Ltd. and Others v. First Choice Distribution (a firm) and Others, 2000 (2) All ER109 p. 115) held that Court can add words in its interpretative process in suitable cases if omission or inadevertence of drafting is noticed, to give effect to the purpose of the Legislature. In Padmasundara Rao v. State of T.N., 2002 KHC575 Cr.MC.Nos.5651/13&amp;1041/14 9 2002 (2) KLT SN44 202 (2) KLJ NOC1:</p><p>2002. (3) SCC533 AIR2002SC1334p. 1340) a Constitution Bench of the Supreme Court held that &quot; a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself .....&quot;. After referring to the decisions in Reserve Bank of India v. Peerless General Finance and Investment Co.Ltd., 1987 KHC850 AIR1987SC1023:</p><p>1987. (61) Comp Cas 663 :</p><p>1987. (1) SCC424and Kehar Singh v. State (Delhi Admn.), 1988 KHC1020:</p><p>1988. (3) SCC609:</p><p>1988. SCC (Cri) 711:</p><p>1988. (2) KLT SN47: AIR1988SC1883and various other decisions on the point, the Hon'ble Supreme Court in National Insurance Co.Ltd. v. Laxmi Narain Dhut, 2007 (1) KHC1054 2007 (3) SCC700:JT2007(4) SC169 ILR2007(2) Ker. 683 : AIR2007SC1563:</p><p>2007. (2) KLT470(SC) has considered how statute should be interpreted. The hon'ble Supreme Court held as follows: &quot;34. A statute is an edict of the Legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of those who make it and the duty of the Court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interprettion the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises difficulties because of various reasons, in as much as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convery a meaning which may be obscure. It is impossible even for the most imaginative Legislature to foresee all situations exhaustively and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in Cr.MC.Nos.5651/13&amp;1041/14 10 future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e., the true of legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. (see District Mining Officer and Others v. Tata Iron and Steel Co. and Another, JT2001(6) SC183.</p><p>35. It is also well settled that to arrive at the intention of the legislation depending on the objects for which the enactment is made, the Court can resort to historical, contextual and purposive interpretation leaving textual interpretation aside. Francis Bennion in his book &quot;Statutory Interpretation&quot; described &quot;purposive interpretation&quot; as under: &quot;A purposive construction of an enactment is one which gives effect to the legislative purpose by-- (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose&quot;. Here, in this case, there is no casus omissus also. Chief Judicial Magistrates in metropolitan areas are designated as Chief Metropolitan Magistrates and vice versa mutatis mutandis by implication and by reference to the area of jurisdiction. Chief Judicial Magistrate in a non metropolitan area stands in the same footing as Chief Metropolitan Magistrate in metropolitan area and, their designations are used synonymously to denote the authority depending upon where one is agree with the view of the learned Single Judge that in non metropolitan areas, apart from the District Magistrate, the powers can be exercised by the Chief Judicial Magistrate also. A similar view was taken by the Madras High Court in 7312 of 2004 (MANU/TN/7582/2006) and we are unable to agree Cr.MC.Nos.5651/13&amp;1041/14 11 with the decision of the Bombay High Court (Aurangabad) in IndusInd Bank Ltd. v. The State of Maharashtra in Crl.WP.Nos.214 and 215 of 2008 (MANU/MH/0375/2008) which took a contrary view)&quot;.</p><p>10. This was affirmed by another Division Bench of this Court in Radhakrishnan V.N' s case (supra). In that case also a request was made to refer the matter to a Larger Bench to consider the question as to whether the Chief Judicial Magistrate has got power to entertain the application under Section 14 of the SARFAESI Act and the Division Bench in that case held that there is no necessity to refer Muhammed Ashraf's case (supra) to a Larger Bench for consideration and concurred with the decision in Muhammed Ashraf's case (supra).</p><p>11. There is no dispute regarding the proposition laid down in the decisions reported in State of Mizoram v. Biakchhawna (1995 (1) SCC156, Chandra Kishore Jha v. Mahavir Prasad &amp; Others (1999 (8) SCC266, Babu Varghese &amp; Others v. Bar Council of Kerala &amp; Others (1999 (3) SCC422 and State of West Bengal v. M/s. B.K. Mondal &amp; Sons (AIR1962SC779 regarding the question as to whether the courts have got power to supply casus omissus when there is no ambiguity in the provisions and when certain Cr.MC.Nos.5651/13&amp;1041/14 12 procedures are provided under the statute, it has to be done in the same manner as it is provided etc. Further, in the decision reported in Raman Gopi v.Kunju Raman Uthaman (2011(4) KLT458, the Full Bench of this Court held that when a Bench of higher number of judges of the concerned court decided a question on the subject, then that is binding on the Bench of co- equal judges or lesser number of judges of that court. So, under the circumstances, the decisions on the subject rendered by two Division Benches of this Court in Muhammed Ashraf's case and Radhakrishnan V.N's case (supra) are binding on this Court. Further, it is settled law that, if a decision has been rendered by the same High Court , then any decision rendered by any other High Court is not binding on the other High Court but it has got only persuasive value. This was so held in the decision reported in Commissioner of Income Tax v. Tana Electricity Supply Ltd (1994 ITR727 relying on the decision reported in Madhava Rao Scindia v. Union of India (AIR1971SC530 held as follows: &quot;The general principles with regard to precedents are: (a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to Cr.MC.Nos.5651/13&amp;1041/14 13 review the same and depart from its earlier opinion if the situation so warrnts. What is binding is, of course, the ratio of the decision and not every expression found therein. (b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction. (c ) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court, may be summed up as follows: (i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comitty demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. (ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differes from another Division Bench of the same High Court, it should refer the case to a larger Bench. (iii) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions. (d) the decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its territorial jurisidiction&quot;.</p><p>12. The same view was reiterated by our High Court in the decision reported in Josekutty v. State of Kerala (2013 (1) KHC241 wherein it has been held that Single Judge is bound to follow the Division Bench decisions. The Single Judge cannot make a reference to Division Bench for the reason that the views Cr.MC.Nos.5651/13&amp;1041/14 14 of the Division Bench are not in agreement with his views. A Full Bench of this Court in Peter v. Sara (2006 KHC1450 = (2006 (4) KLT219 also expressed the same view. Further, another Single Bench of this Court in the decision reported in Federal Bank Ltd. v. Punnus (2013 (4) KLT578 has held that the Madras decision is not binding in view of the Division Bench decision of this Court on this aspect. In view of the above discussions, there is no merit in the submission made by the counsel for the petitioners that the Chief Judicial Magistrate has no jurisdiction to entertain the application under Section 14 of the SARFAESI Act and there is no need to refer the matter to a Larger Bench for reconsideration in view of the fact that, that request was turned down by a Division Bench of this Court in Radhakrishnan V.N's case (supra). Further, in the decision reported in Radhakrishnan V.N's case (supra), it has been held that since the proceedings sought to be challenged is not one taken under the provisions of the Criminal Procedure Code, but it is one under Section 14 of the SARFAESI Act, the application filed under Section 482 of the Code of Criminal Procedure is not maintainable in view of the statutory bar contained under Section 14(3) of the SARFAESI Act. Further in the decision reported in Standard Chartered Bank v. Noble Cr.MC.Nos.5651/13&amp;1041/14 15 Kumar (2013 (4) KLT531(SC), the Hon'ble Supreme Court has held that the remedy of the petitioners in such cases is to file appeal before the Debt Recovery Tribunal after dispossession under Section 17 of the Act. That was also a case went from Tamil Nadu against an action taken by the Chief Judicial Magistrate invoking the power under Section 14 of the SARFAESI Act. So, under the circumstances, there is no merit in these petitions and these petitions are liable to be dismissed. In the result, these petitions are dismissed. Sd/- K. RAMAKRISHNAN, JUDGE. cl /true copy/ PS to Judge Cr.MC.Nos.5651/13&amp;1041/14 16',
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$desc = array(
	'Judgement' => array(
		'id' => '1130918',
		'acts' => null,
		'appealno' => null,
		'appellant' => 'Rosamma Joseph',
		'authreffered' => null,
		'casename' => 'Rosamma Joseph Vs. State of Kerala',
		'casenote' => '',
		'caseanalysis' => null,
		'casesref' => null,
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		'counselplain' => null,
		'counseldef' => null,
		'court' => 'Kerala',
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		'judge' => 'HONOURABLE MR. JUSTICE K.RAMAKRISHNAN',
		'judgement' => '<p>IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE21T DAY OF FEBRUARY20142ND PHALGUNA, 1935 Crl.MC.No. 5651 of 2013 () --------------------------- CRL.M.P.NO. 498/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM --------------------- PETITIONERS / RESPONDENT IN CRL.M.P.498/2012 OF C.J.M. KOTTAYAM : ------------------------------------------------------------------------------------------------------------ 1. ROSAMMA JOSEPH, W/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, POOVARANY P.O., KOTTAYAM DISTRICT.</p><p>2. KIRAN JOSE S/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, POOVARANY P.O., KOTTAYAM DISTRICT. BY ADVS.SRI.PRAVEEN K. JOY SRI.G.MANU KRISHNAN SRI.T.A.JOY SRI.NIXON PAUL SRI.DINESH R.SHENOY RESPONDENTS/PETITIONERS IN CRL.M.P. 498/2012 AND STATE : --------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM.</p><p>2. STATE BANK OF TRAVANCORE ETTUMANNUR BRANCH POOVARANNY REP. BY THE AUTHORISED OFFICER CHIEF MANAGER (A.D.V.) REGION III ZONAL OFFICE, KOTTAYAM. R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE P. R2 BY ADV. SRI.SATHISH NINAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON1202-2014, THE COURT ON2102-2014 PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 5651 of 2013 () ------------------------------------- APPENDIX PETITIONERS' ANNEXURES : ------------------------------------------- ANNEXURE I- TRUE PHOTOCOPY OF THE CRIMINAL M.P.498/2012 DT. 3.4.2012 OF THE PETITION, BEFORE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE II- TRUE PHOTOCOPY OF THE PETITION IN C.M.P.2646/2013 IN CRL.M.P.498/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE III- TRUE PHOTOCOPY OF THE THANDAPER RECORD DT. 1.11.2013 OF POOVARANNY VILLAGE AND SKETCH. ANNEXURE IV- TRUE PHOTOCOPY OF THE PROFESSIONAL CERTIFICATE DT. 23.5.2011 OF VILLAGE OFFICER, POOVARANNY. ANNEXURE V- TRUE COPY OF THE RELEVANT PAGES OF THE CITATION, 2013(4) KLT SN39CASE NO.34) MADRAS (F.B) IN AROCKIYARAJ-VS-CHIEF JUDICIAL MAGISTRATE DT. 27.8.2013. ANNEXURE VI- TRUE CERTIFIED COPY OF THE PROCEEDINGS AND </p>ORDER<p> DT. 4.11.2013 IN C.M.P.2646/2013 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE VII- TRUE RELEVANT PAGE OF THE DECISION REPORTED IN20133)KLT366(HOUSING DEVELOPMENT FINANCE CORPORATION LTD. VS. GOVERNMENT OF KERALA) IN WP(C) NO.16628 OF2013DT. 5.7.2013 OF THIS HON'BLE COURT. ANNEXURE VIII- TRUE PHOTOCOPY OF THE PROCEEDINGS DATED411.2013 IN C.M.P. 498/2012 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE IX- TRUE PHOTOCOPY OF THE NOTICE DATED2211.2013 OF ADVOCATE COMMISSIONER AS PER </p>ORDER<p> IN C.M.P.498/2012 OF C.J.M. KOTTAYAM. RESPONDENT(S)' ANNEXURES : ------------------------------------------------ ANNEXURE R2(a) COPY OF THE </p>JUDGMENT<p> DATED222-2013 IN W.A. NO. 302/2013 OF THIS HONOURABLE COURT. ANNEXURE R2(b) COPY OF THE </p>ORDER<p> PASSED BY THE DEBTS RECOVERY TRIBUNAL,ERNAKULAM IN IA NO. 1043/2013 IN SA NO. 273/2013. ANNEXURE R2(c) COPY OF THE </p>JUDGMENT<p> DATED1811-2013 IN WP(C) NO. 28174/2013 OF THIS HONOURABLE COURT. ANNEXURE R2(d) COPY OF THE </p>JUDGMENT<p> DATED1812-2013 IN WA NO. 1860/2013 OF THIS HONOURABLE COURT. //TRUE COPY// P.S. TO JUDGE Mn &quot;CR&quot; K. RAMAKRISHNAN, J.</p><p>................................................. Crl.M.C.No.5651 of 2013 &amp; Crl.M.C.No.1041 of 2014 .................................................. Dated this the 21st day of February, 2014. </p></p>ORDER<p><p> Crl.M.C.No.5651/2013 was filed by the counter petitioners in Crl.M.P.No.498/2012 on the files of the Chief Judicial Magistrate Court, Kottayam, to set aside the order passed thereon under Section 482 of the Code of Criminal Procedure.</p><p>2. Crl.M.C.No.1041/2014 was also filed by the counter petitioners in CMP.No.132/2012 on the files of the Chief Judicial Magistrate Court, Palakkad, to quash the order passed thereon under Section 482 of the Code of Criminal Procedure.</p><p>3. In both these cases, the 2nd respondent Bank filed application before the Chief Judicial Magistrate Court in respective places seeking assistance to get delivery of the secured interest invoking Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act'). In both these cases, properties of the petitioners were mortgaged to the banks as security for availing loan and they Cr.MC.Nos.5651/13&amp;1041/14 2 have committed default. Thereafter, notice under Section 13(2) of the SARFAESI Act was sent to them. Since they have not sent any objection or paid the amount within the specified time provided under Section 13 of the Act, they filed applications seeking assistance of the Chief Judicial Magistrate to take possession of the property secured. The learned Chief Judicial Magistrate after satisfying the contents of the applications and the documents produced, appointed an Advocate Commissioner to take possession of the property and deliver the same to the bank. The action of the Chief Judicial Magistrate appointing Advocate Commissioner to deliver the property is being questioned before this Court by the petitioners in both these cases.</p><p>4. In both these cases, the common question raised by the respective learned counsel for the petitioners was regarding maintainability of the application before the Chief Judicial Magistrate Court under Section 14 of the SARFAESI Act. Since common question arose for consideration in both these cases, these petitions were disposed of by this Court by a common judgment.</p><p>5. The counsel for the petitioners submitted that by virtue of Section 14 of the SARFAESI Act only Chief Metropolitan Cr.MC.Nos.5651/13&amp;1041/14 3 Magistrate or District Magistrate alone is entitled to entertain the application for this purpose. So, the Chief Judicial Magistrate has no jurisdiction to entertain the petition under Section 14 of the SARFAESI Act. Further, they have also argued that, wherever the Judicial First Class Magistrate has to exercise power, it has been specifically mentioned under the SARFAESI Act and so it cannot be said that the legislature was not aware of the difference between Chief Judicial Magistrate and Chief Metropolitan Magistrate while using the terminology Chief Metropolitan Magistrate or District Magistrate in that section. According to the learned counsel, it is settled law that the courts cannot supply casus omissus and purposive interpretation also is not available for the purpose of supply of casus omissus in such cases as there is no ambiguity in the terminology used in the section. They have relied on the Full Bench decision of the Madras High Court in K. Arockiyaraj &amp; Others v. The Chief Judicial Magistrate, Srivilliputhur, Virudhunagar District &amp; Others (CDJ2013MHC3970, State of Mizoram v. Biakchhawna (1995 (1) SCC156, Chandra Kishore Jha v. Mahavir Prasad &amp; Others (1999 (8) SCC266, Babu Varghese &amp; Others v. Bar Council of Kerala &amp; Others (1999 (3) SCC422 and State of West Bengal v. M/s. B.K. Cr.MC.Nos.5651/13&amp;1041/14 4 Mondal &amp; Sons (AIR1962SC779 in support of the case and they wanted this Court to refer the matter to a Larger Bench to consider the question again as, according to them, the earlier two Division Benches of this Court did not consider the aspects, now considered by the Madras High Court and Bombay High Court in this regard.</p><p>6. On the other hand, the counsel for the respondents in both the cases submitted that it is clear from the intention of the Legislature that enacting the present Act itself was to provide a speedy remedy for enforcing the right of the financial institutions over their secured interest for realisation of the amount and wherever Chief Metropolitan Magistrates are not available, Chief Judicial Magistrates are vested with the power to do all the works of the Chief Metropolitan Magistrate. Two Division Benches of this Court in Muhammed Ashraf &amp; Another v. Union of India &amp; Others (2008 (3) KHC935 and Radhakrishnan V.N. v. State of Kerala &amp; another (ILR2008(4) Ker. 863) had held that the Chief Judicial Magistrates are empowered to do all the works of the Chief Metropolitan Magistrate in non metropolitan areas and in the latter decision, the request for reference to a Larger Bench for considering the same purpose was declined aswell. So, under the circumstances, Cr.MC.Nos.5651/13&amp;1041/14 5 there is no merit in the submission made by the counsel for the petitioners.</p><p>7. It is an admitted fact that in both these cases, the banks have filed applications before the respective Chief Judicial Magistrate Courts namely Kottayam and Palghat for enforcing their secured interest invoking Section 14 of the SARFAESI Act. Section 14 of the SARFAESI Act (as stood prior to amendment) reads as follows:</p><p>14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset:-(1) Where the possession of any secured assets is requird to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him- (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. (2) for the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any Cr.MC.Nos.5651/13&amp;1041/14 6 authority.</p><p>8. Though Section 14 of the SARFAESI Act was amended by Amendment Act 1 of 2013, which came into force from 4.1.2013, there is no change made by the amendment to Section 14(1) of the SARFAESI Act.</p><p>9. It is true that, in Section 14 it has been mentioned that, the application has to be filed before the Chief Metropolitan Magistrate or District Magistrate. In the decision reported in Arockiyaraj's case (supra), the Full Bench of the Madras High relying on the decisions of Bombay High Court in IndusInd Bank Ltd. v. The State of Maharashtra (CDJ2008BHC520 and Arjun Urban Co-operative Bank Ltd., Solapur v. C.J.M. Solapur Court [2009 (2) D.R.T.C431(Bom)] held that only Chief Metropolitan Magistrates or District Magistrates are empowered to entertain the application under Section 14 of the SARFAESI Act. But, the Division Bench of this Court in Muhammed Ashraf &amp; Another v. Union of India &amp; Others (2008 (3) KHC935 has held that the powers of the Chief Judicial Magistrate in non metropolitan area and the Chief Metropolitan Magistrate in metropolitan area are one and the same and the application under Section 14 of the SARFAESI Act can be entertained by the Chief Judicial Cr.MC.Nos.5651/13&amp;1041/14 7 Magistrate in a non metropolitan area. The question whether this is casus omissus was considered by the Division Bench in para 5 of the decision which reads as follows: &quot;5. Learned counsel for the petitioners argued that so long as the word 'Chief Judicial Maistrate' is not mentioned in S.14 of the Securitisation Act, merely beause Chief Metropolitan Magistrate is mentioned in S.14, it cannot be stated that Chief Judicial Magistrate in non metropolitan areas also has the power under S.14. Relying on the decison of the Hon'ble Supreme Court in M/s. Unique Butyle Tube Industries Pvt. Ltd. v. U.P. Financial Corporation and Others, 2003 HKC852 2003 (2) SCC455 2003 (113) Comp Cas 374:</p><p>2003. All LJ427 AIR2003SC2103it was argued that the Court cannot supply the omissions by the Legislature. While interpreting a provision, the Court only interprets the law and cannot legislate it. It is for the legislature to amend, modify or repeal it if it is deemed necessary. By the principle of casus omissus, Court cannot supply the law. In the above case, the Hon'ble Supreme Court was considering the Recovery Debts Due to Banks and Financial Institutions Act (RDBI Act). Under S.34 (1) of the above Act, it was mentioned that the provisons of that Act have overriding effect over other Acts. But, the question is whether RDBI Act was enacted in addition to other acts. Sub-section (2) of S.34 of the above Act provides that it is in addition to certain specified Acts like Financial Corporation Act etc. Uttar Predesh Public Monies (Recovery of Dues )Act, 1972 (UP. Act) was not included under S.34(2)of the RDBI Act. Therefore, the Hon'ble Supreme Court has held that Financial Corporation can approach for recovery of dues under the RDBI Act or under the Financial Corporation Act, but, not under the U.P.Act, 1972 as it was not enacted in additon to the U.P.Act, 1972. Here, the position is entirely different. The question is whether the term &quot;Chief Metropolitan Magistrate&quot; in metropolitan areas will include Chief Judicial Magistrate in non metropolitan areas. We are of the view that legislation has to be understood Cr.MC.Nos.5651/13&amp;1041/14 8 in a reasonable manner. In the context of the definition in the Cr.PC, it can be gathered that a Chief Judicial Magistrate in non metropolitan area and Chief Metropolitan Magistrate in metropolitan area are used in legal parlance similarly. As held in Holmes v. Bradfield Rural District Council, 1949 (1) All ER381(page 384) and Nasiruddin v. State Transport Appelate Tribunal, 1975 (2) SCC6711976 (1) SCR505: AIR1976SC331(page 338) this Court has to adopt 'just reasonable and sensible' interpretation. In this connection, we refer to the following observations of the Denning L.J.</p><p>in Seaford Court Estates Ltd. v. Asher, 1949 (2) All ER155 p. 164 (CA): &quot;When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases&quot;. Though the above view was criticised by House of Lords in Magor and St. Mellons R.D.C v. Newport Corporation, 1951 (2) All ER839(HL), it was quoted with approval by the Hon'ble Supreme Court in M. Pentiah v. Muddala Veeramallapa, 1961 (2) SCA249 1961 (2) SCR295 1963 (1) SCJ768 AIR1961SC1107 Bangalore Water Supply v. A. Rajappa, 1978 (2) SCC213 1978 Lab IC467 1978 (1) Lab LJ349 1978 SCC (Lab) 215:</p><p>1978. CLNR96 1978 (1) SCJ481:AIR1978SC548at.p.552 ,561, NEPC Micon Ltd.v.Magna Leasing Ltd. 1999 KHC488 1999 (2) KLT SN45 1999 (2) KLJ59:</p><p>1999. (2) KLJ NOC17 1999 (4)SCC253 AIR1999SC1952 p. 1957) etc. But, House of Lords in Inco Europe Ltd. and Others v. First Choice Distribution (a firm) and Others, 2000 (2) All ER109 p. 115) held that Court can add words in its interpretative process in suitable cases if omission or inadevertence of drafting is noticed, to give effect to the purpose of the Legislature. In Padmasundara Rao v. State of T.N., 2002 KHC575 Cr.MC.Nos.5651/13&amp;1041/14 9 2002 (2) KLT SN44 202 (2) KLJ NOC1:</p><p>2002. (3) SCC533 AIR2002SC1334p. 1340) a Constitution Bench of the Supreme Court held that &quot; a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself .....&quot;. After referring to the decisions in Reserve Bank of India v. Peerless General Finance and Investment Co.Ltd., 1987 KHC850 AIR1987SC1023:</p><p>1987. (61) Comp Cas 663 :</p><p>1987. (1) SCC424and Kehar Singh v. State (Delhi Admn.), 1988 KHC1020:</p><p>1988. (3) SCC609:</p><p>1988. SCC (Cri) 711:</p><p>1988. (2) KLT SN47: AIR1988SC1883and various other decisions on the point, the Hon'ble Supreme Court in National Insurance Co.Ltd. v. Laxmi Narain Dhut, 2007 (1) KHC1054 2007 (3) SCC700:JT2007(4) SC169 ILR2007(2) Ker. 683 : AIR2007SC1563:</p><p>2007. (2) KLT470(SC) has considered how statute should be interpreted. The hon'ble Supreme Court held as follows: &quot;34. A statute is an edict of the Legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of those who make it and the duty of the Court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interprettion the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises difficulties because of various reasons, in as much as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convery a meaning which may be obscure. It is impossible even for the most imaginative Legislature to foresee all situations exhaustively and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in Cr.MC.Nos.5651/13&amp;1041/14 10 future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e., the true of legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. (see District Mining Officer and Others v. Tata Iron and Steel Co. and Another, JT2001(6) SC183.</p><p>35. It is also well settled that to arrive at the intention of the legislation depending on the objects for which the enactment is made, the Court can resort to historical, contextual and purposive interpretation leaving textual interpretation aside. Francis Bennion in his book &quot;Statutory Interpretation&quot; described &quot;purposive interpretation&quot; as under: &quot;A purposive construction of an enactment is one which gives effect to the legislative purpose by-- (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose&quot;. Here, in this case, there is no casus omissus also. Chief Judicial Magistrates in metropolitan areas are designated as Chief Metropolitan Magistrates and vice versa mutatis mutandis by implication and by reference to the area of jurisdiction. Chief Judicial Magistrate in a non metropolitan area stands in the same footing as Chief Metropolitan Magistrate in metropolitan area and, their designations are used synonymously to denote the authority depending upon where one is agree with the view of the learned Single Judge that in non metropolitan areas, apart from the District Magistrate, the powers can be exercised by the Chief Judicial Magistrate also. A similar view was taken by the Madras High Court in 7312 of 2004 (MANU/TN/7582/2006) and we are unable to agree Cr.MC.Nos.5651/13&amp;1041/14 11 with the decision of the Bombay High Court (Aurangabad) in IndusInd Bank Ltd. v. The State of Maharashtra in Crl.WP.Nos.214 and 215 of 2008 (MANU/MH/0375/2008) which took a contrary view)&quot;.</p><p>10. This was affirmed by another Division Bench of this Court in Radhakrishnan V.N' s case (supra). In that case also a request was made to refer the matter to a Larger Bench to consider the question as to whether the Chief Judicial Magistrate has got power to entertain the application under Section 14 of the SARFAESI Act and the Division Bench in that case held that there is no necessity to refer Muhammed Ashraf's case (supra) to a Larger Bench for consideration and concurred with the decision in Muhammed Ashraf's case (supra).</p><p>11. There is no dispute regarding the proposition laid down in the decisions reported in State of Mizoram v. Biakchhawna (1995 (1) SCC156, Chandra Kishore Jha v. Mahavir Prasad &amp; Others (1999 (8) SCC266, Babu Varghese &amp; Others v. Bar Council of Kerala &amp; Others (1999 (3) SCC422 and State of West Bengal v. M/s. B.K. Mondal &amp; Sons (AIR1962SC779 regarding the question as to whether the courts have got power to supply casus omissus when there is no ambiguity in the provisions and when certain Cr.MC.Nos.5651/13&amp;1041/14 12 procedures are provided under the statute, it has to be done in the same manner as it is provided etc. Further, in the decision reported in Raman Gopi v.Kunju Raman Uthaman (2011(4) KLT458, the Full Bench of this Court held that when a Bench of higher number of judges of the concerned court decided a question on the subject, then that is binding on the Bench of co- equal judges or lesser number of judges of that court. So, under the circumstances, the decisions on the subject rendered by two Division Benches of this Court in Muhammed Ashraf's case and Radhakrishnan V.N's case (supra) are binding on this Court. Further, it is settled law that, if a decision has been rendered by the same High Court , then any decision rendered by any other High Court is not binding on the other High Court but it has got only persuasive value. This was so held in the decision reported in Commissioner of Income Tax v. Tana Electricity Supply Ltd (1994 ITR727 relying on the decision reported in Madhava Rao Scindia v. Union of India (AIR1971SC530 held as follows: &quot;The general principles with regard to precedents are: (a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to Cr.MC.Nos.5651/13&amp;1041/14 13 review the same and depart from its earlier opinion if the situation so warrnts. What is binding is, of course, the ratio of the decision and not every expression found therein. (b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction. (c ) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court, may be summed up as follows: (i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comitty demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. (ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differes from another Division Bench of the same High Court, it should refer the case to a larger Bench. (iii) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions. (d) the decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its territorial jurisidiction&quot;.</p><p>12. The same view was reiterated by our High Court in the decision reported in Josekutty v. State of Kerala (2013 (1) KHC241 wherein it has been held that Single Judge is bound to follow the Division Bench decisions. The Single Judge cannot make a reference to Division Bench for the reason that the views Cr.MC.Nos.5651/13&amp;1041/14 14 of the Division Bench are not in agreement with his views. A Full Bench of this Court in Peter v. Sara (2006 KHC1450 = (2006 (4) KLT219 also expressed the same view. Further, another Single Bench of this Court in the decision reported in Federal Bank Ltd. v. Punnus (2013 (4) KLT578 has held that the Madras decision is not binding in view of the Division Bench decision of this Court on this aspect. In view of the above discussions, there is no merit in the submission made by the counsel for the petitioners that the Chief Judicial Magistrate has no jurisdiction to entertain the application under Section 14 of the SARFAESI Act and there is no need to refer the matter to a Larger Bench for reconsideration in view of the fact that, that request was turned down by a Division Bench of this Court in Radhakrishnan V.N's case (supra). Further, in the decision reported in Radhakrishnan V.N's case (supra), it has been held that since the proceedings sought to be challenged is not one taken under the provisions of the Criminal Procedure Code, but it is one under Section 14 of the SARFAESI Act, the application filed under Section 482 of the Code of Criminal Procedure is not maintainable in view of the statutory bar contained under Section 14(3) of the SARFAESI Act. Further in the decision reported in Standard Chartered Bank v. Noble Cr.MC.Nos.5651/13&amp;1041/14 15 Kumar (2013 (4) KLT531(SC), the Hon'ble Supreme Court has held that the remedy of the petitioners in such cases is to file appeal before the Debt Recovery Tribunal after dispossession under Section 17 of the Act. That was also a case went from Tamil Nadu against an action taken by the Chief Judicial Magistrate invoking the power under Section 14 of the SARFAESI Act. So, under the circumstances, there is no merit in these petitions and these petitions are liable to be dismissed. In the result, these petitions are dismissed. Sd/- K. RAMAKRISHNAN, JUDGE. cl /true copy/ PS to Judge Cr.MC.Nos.5651/13&amp;1041/14 16',
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		'Judgement' => array(
			'id' => '1130918',
			'acts' => null,
			'appealno' => null,
			'appellant' => 'Rosamma Joseph',
			'authreffered' => null,
			'casename' => 'Rosamma Joseph Vs. State of Kerala',
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			'judge' => 'HONOURABLE MR. JUSTICE K.RAMAKRISHNAN',
			'judgement' => '<p>IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE21T DAY OF FEBRUARY20142ND PHALGUNA, 1935 Crl.MC.No. 5651 of 2013 () --------------------------- CRL.M.P.NO. 498/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM --------------------- PETITIONERS / RESPONDENT IN CRL.M.P.498/2012 OF C.J.M. KOTTAYAM : ------------------------------------------------------------------------------------------------------------ 1. ROSAMMA JOSEPH, W/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, POOVARANY P.O., KOTTAYAM DISTRICT.</p><p>2. KIRAN JOSE S/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, POOVARANY P.O., KOTTAYAM DISTRICT. BY ADVS.SRI.PRAVEEN K. JOY SRI.G.MANU KRISHNAN SRI.T.A.JOY SRI.NIXON PAUL SRI.DINESH R.SHENOY RESPONDENTS/PETITIONERS IN CRL.M.P. 498/2012 AND STATE : --------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM.</p><p>2. STATE BANK OF TRAVANCORE ETTUMANNUR BRANCH POOVARANNY REP. BY THE AUTHORISED OFFICER CHIEF MANAGER (A.D.V.) REGION III ZONAL OFFICE, KOTTAYAM. R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE P. R2 BY ADV. SRI.SATHISH NINAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON1202-2014, THE COURT ON2102-2014 PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 5651 of 2013 () ------------------------------------- APPENDIX PETITIONERS' ANNEXURES : ------------------------------------------- ANNEXURE I- TRUE PHOTOCOPY OF THE CRIMINAL M.P.498/2012 DT. 3.4.2012 OF THE PETITION, BEFORE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE II- TRUE PHOTOCOPY OF THE PETITION IN C.M.P.2646/2013 IN CRL.M.P.498/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE III- TRUE PHOTOCOPY OF THE THANDAPER RECORD DT. 1.11.2013 OF POOVARANNY VILLAGE AND SKETCH. ANNEXURE IV- TRUE PHOTOCOPY OF THE PROFESSIONAL CERTIFICATE DT. 23.5.2011 OF VILLAGE OFFICER, POOVARANNY. ANNEXURE V- TRUE COPY OF THE RELEVANT PAGES OF THE CITATION, 2013(4) KLT SN39CASE NO.34) MADRAS (F.B) IN AROCKIYARAJ-VS-CHIEF JUDICIAL MAGISTRATE DT. 27.8.2013. ANNEXURE VI- TRUE CERTIFIED COPY OF THE PROCEEDINGS AND </p>ORDER<p> DT. 4.11.2013 IN C.M.P.2646/2013 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE VII- TRUE RELEVANT PAGE OF THE DECISION REPORTED IN20133)KLT366(HOUSING DEVELOPMENT FINANCE CORPORATION LTD. VS. GOVERNMENT OF KERALA) IN WP(C) NO.16628 OF2013DT. 5.7.2013 OF THIS HON'BLE COURT. ANNEXURE VIII- TRUE PHOTOCOPY OF THE PROCEEDINGS DATED411.2013 IN C.M.P. 498/2012 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE IX- TRUE PHOTOCOPY OF THE NOTICE DATED2211.2013 OF ADVOCATE COMMISSIONER AS PER </p>ORDER<p> IN C.M.P.498/2012 OF C.J.M. KOTTAYAM. RESPONDENT(S)' ANNEXURES : ------------------------------------------------ ANNEXURE R2(a) COPY OF THE </p>JUDGMENT<p> DATED222-2013 IN W.A. NO. 302/2013 OF THIS HONOURABLE COURT. ANNEXURE R2(b) COPY OF THE </p>ORDER<p> PASSED BY THE DEBTS RECOVERY TRIBUNAL,ERNAKULAM IN IA NO. 1043/2013 IN SA NO. 273/2013. ANNEXURE R2(c) COPY OF THE </p>JUDGMENT<p> DATED1811-2013 IN WP(C) NO. 28174/2013 OF THIS HONOURABLE COURT. ANNEXURE R2(d) COPY OF THE </p>JUDGMENT<p> DATED1812-2013 IN WA NO. 1860/2013 OF THIS HONOURABLE COURT. //TRUE COPY// P.S. TO JUDGE Mn &quot;CR&quot; K. RAMAKRISHNAN, J.</p><p>................................................. Crl.M.C.No.5651 of 2013 &amp; Crl.M.C.No.1041 of 2014 .................................................. Dated this the 21st day of February, 2014. </p></p>ORDER<p><p> Crl.M.C.No.5651/2013 was filed by the counter petitioners in Crl.M.P.No.498/2012 on the files of the Chief Judicial Magistrate Court, Kottayam, to set aside the order passed thereon under Section 482 of the Code of Criminal Procedure.</p><p>2. Crl.M.C.No.1041/2014 was also filed by the counter petitioners in CMP.No.132/2012 on the files of the Chief Judicial Magistrate Court, Palakkad, to quash the order passed thereon under Section 482 of the Code of Criminal Procedure.</p><p>3. In both these cases, the 2nd respondent Bank filed application before the Chief Judicial Magistrate Court in respective places seeking assistance to get delivery of the secured interest invoking Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act'). In both these cases, properties of the petitioners were mortgaged to the banks as security for availing loan and they Cr.MC.Nos.5651/13&amp;1041/14 2 have committed default. Thereafter, notice under Section 13(2) of the SARFAESI Act was sent to them. Since they have not sent any objection or paid the amount within the specified time provided under Section 13 of the Act, they filed applications seeking assistance of the Chief Judicial Magistrate to take possession of the property secured. The learned Chief Judicial Magistrate after satisfying the contents of the applications and the documents produced, appointed an Advocate Commissioner to take possession of the property and deliver the same to the bank. The action of the Chief Judicial Magistrate appointing Advocate Commissioner to deliver the property is being questioned before this Court by the petitioners in both these cases.</p><p>4. In both these cases, the common question raised by the respective learned counsel for the petitioners was regarding maintainability of the application before the Chief Judicial Magistrate Court under Section 14 of the SARFAESI Act. Since common question arose for consideration in both these cases, these petitions were disposed of by this Court by a common judgment.</p><p>5. The counsel for the petitioners submitted that by virtue of Section 14 of the SARFAESI Act only Chief Metropolitan Cr.MC.Nos.5651/13&amp;1041/14 3 Magistrate or District Magistrate alone is entitled to entertain the application for this purpose. So, the Chief Judicial Magistrate has no jurisdiction to entertain the petition under Section 14 of the SARFAESI Act. Further, they have also argued that, wherever the Judicial First Class Magistrate has to exercise power, it has been specifically mentioned under the SARFAESI Act and so it cannot be said that the legislature was not aware of the difference between Chief Judicial Magistrate and Chief Metropolitan Magistrate while using the terminology Chief Metropolitan Magistrate or District Magistrate in that section. According to the learned counsel, it is settled law that the courts cannot supply casus omissus and purposive interpretation also is not available for the purpose of supply of casus omissus in such cases as there is no ambiguity in the terminology used in the section. They have relied on the Full Bench decision of the Madras High Court in K. Arockiyaraj &amp; Others v. The Chief Judicial Magistrate, Srivilliputhur, Virudhunagar District &amp; Others (CDJ2013MHC3970, State of Mizoram v. Biakchhawna (1995 (1) SCC156, Chandra Kishore Jha v. Mahavir Prasad &amp; Others (1999 (8) SCC266, Babu Varghese &amp; Others v. Bar Council of Kerala &amp; Others (1999 (3) SCC422 and State of West Bengal v. M/s. B.K. Cr.MC.Nos.5651/13&amp;1041/14 4 Mondal &amp; Sons (AIR1962SC779 in support of the case and they wanted this Court to refer the matter to a Larger Bench to consider the question again as, according to them, the earlier two Division Benches of this Court did not consider the aspects, now considered by the Madras High Court and Bombay High Court in this regard.</p><p>6. On the other hand, the counsel for the respondents in both the cases submitted that it is clear from the intention of the Legislature that enacting the present Act itself was to provide a speedy remedy for enforcing the right of the financial institutions over their secured interest for realisation of the amount and wherever Chief Metropolitan Magistrates are not available, Chief Judicial Magistrates are vested with the power to do all the works of the Chief Metropolitan Magistrate. Two Division Benches of this Court in Muhammed Ashraf &amp; Another v. Union of India &amp; Others (2008 (3) KHC935 and Radhakrishnan V.N. v. State of Kerala &amp; another (ILR2008(4) Ker. 863) had held that the Chief Judicial Magistrates are empowered to do all the works of the Chief Metropolitan Magistrate in non metropolitan areas and in the latter decision, the request for reference to a Larger Bench for considering the same purpose was declined aswell. So, under the circumstances, Cr.MC.Nos.5651/13&amp;1041/14 5 there is no merit in the submission made by the counsel for the petitioners.</p><p>7. It is an admitted fact that in both these cases, the banks have filed applications before the respective Chief Judicial Magistrate Courts namely Kottayam and Palghat for enforcing their secured interest invoking Section 14 of the SARFAESI Act. Section 14 of the SARFAESI Act (as stood prior to amendment) reads as follows:</p><p>14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset:-(1) Where the possession of any secured assets is requird to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him- (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. (2) for the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any Cr.MC.Nos.5651/13&amp;1041/14 6 authority.</p><p>8. Though Section 14 of the SARFAESI Act was amended by Amendment Act 1 of 2013, which came into force from 4.1.2013, there is no change made by the amendment to Section 14(1) of the SARFAESI Act.</p><p>9. It is true that, in Section 14 it has been mentioned that, the application has to be filed before the Chief Metropolitan Magistrate or District Magistrate. In the decision reported in Arockiyaraj's case (supra), the Full Bench of the Madras High relying on the decisions of Bombay High Court in IndusInd Bank Ltd. v. The State of Maharashtra (CDJ2008BHC520 and Arjun Urban Co-operative Bank Ltd., Solapur v. C.J.M. Solapur Court [2009 (2) D.R.T.C431(Bom)] held that only Chief Metropolitan Magistrates or District Magistrates are empowered to entertain the application under Section 14 of the SARFAESI Act. But, the Division Bench of this Court in Muhammed Ashraf &amp; Another v. Union of India &amp; Others (2008 (3) KHC935 has held that the powers of the Chief Judicial Magistrate in non metropolitan area and the Chief Metropolitan Magistrate in metropolitan area are one and the same and the application under Section 14 of the SARFAESI Act can be entertained by the Chief Judicial Cr.MC.Nos.5651/13&amp;1041/14 7 Magistrate in a non metropolitan area. The question whether this is casus omissus was considered by the Division Bench in para 5 of the decision which reads as follows: &quot;5. Learned counsel for the petitioners argued that so long as the word 'Chief Judicial Maistrate' is not mentioned in S.14 of the Securitisation Act, merely beause Chief Metropolitan Magistrate is mentioned in S.14, it cannot be stated that Chief Judicial Magistrate in non metropolitan areas also has the power under S.14. Relying on the decison of the Hon'ble Supreme Court in M/s. Unique Butyle Tube Industries Pvt. Ltd. v. U.P. Financial Corporation and Others, 2003 HKC852 2003 (2) SCC455 2003 (113) Comp Cas 374:</p><p>2003. All LJ427 AIR2003SC2103it was argued that the Court cannot supply the omissions by the Legislature. While interpreting a provision, the Court only interprets the law and cannot legislate it. It is for the legislature to amend, modify or repeal it if it is deemed necessary. By the principle of casus omissus, Court cannot supply the law. In the above case, the Hon'ble Supreme Court was considering the Recovery Debts Due to Banks and Financial Institutions Act (RDBI Act). Under S.34 (1) of the above Act, it was mentioned that the provisons of that Act have overriding effect over other Acts. But, the question is whether RDBI Act was enacted in addition to other acts. Sub-section (2) of S.34 of the above Act provides that it is in addition to certain specified Acts like Financial Corporation Act etc. Uttar Predesh Public Monies (Recovery of Dues )Act, 1972 (UP. Act) was not included under S.34(2)of the RDBI Act. Therefore, the Hon'ble Supreme Court has held that Financial Corporation can approach for recovery of dues under the RDBI Act or under the Financial Corporation Act, but, not under the U.P.Act, 1972 as it was not enacted in additon to the U.P.Act, 1972. Here, the position is entirely different. The question is whether the term &quot;Chief Metropolitan Magistrate&quot; in metropolitan areas will include Chief Judicial Magistrate in non metropolitan areas. We are of the view that legislation has to be understood Cr.MC.Nos.5651/13&amp;1041/14 8 in a reasonable manner. In the context of the definition in the Cr.PC, it can be gathered that a Chief Judicial Magistrate in non metropolitan area and Chief Metropolitan Magistrate in metropolitan area are used in legal parlance similarly. As held in Holmes v. Bradfield Rural District Council, 1949 (1) All ER381(page 384) and Nasiruddin v. State Transport Appelate Tribunal, 1975 (2) SCC6711976 (1) SCR505: AIR1976SC331(page 338) this Court has to adopt 'just reasonable and sensible' interpretation. In this connection, we refer to the following observations of the Denning L.J.</p><p>in Seaford Court Estates Ltd. v. Asher, 1949 (2) All ER155 p. 164 (CA): &quot;When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases&quot;. Though the above view was criticised by House of Lords in Magor and St. Mellons R.D.C v. Newport Corporation, 1951 (2) All ER839(HL), it was quoted with approval by the Hon'ble Supreme Court in M. Pentiah v. Muddala Veeramallapa, 1961 (2) SCA249 1961 (2) SCR295 1963 (1) SCJ768 AIR1961SC1107 Bangalore Water Supply v. A. Rajappa, 1978 (2) SCC213 1978 Lab IC467 1978 (1) Lab LJ349 1978 SCC (Lab) 215:</p><p>1978. CLNR96 1978 (1) SCJ481:AIR1978SC548at.p.552 ,561, NEPC Micon Ltd.v.Magna Leasing Ltd. 1999 KHC488 1999 (2) KLT SN45 1999 (2) KLJ59:</p><p>1999. (2) KLJ NOC17 1999 (4)SCC253 AIR1999SC1952 p. 1957) etc. But, House of Lords in Inco Europe Ltd. and Others v. First Choice Distribution (a firm) and Others, 2000 (2) All ER109 p. 115) held that Court can add words in its interpretative process in suitable cases if omission or inadevertence of drafting is noticed, to give effect to the purpose of the Legislature. In Padmasundara Rao v. State of T.N., 2002 KHC575 Cr.MC.Nos.5651/13&amp;1041/14 9 2002 (2) KLT SN44 202 (2) KLJ NOC1:</p><p>2002. (3) SCC533 AIR2002SC1334p. 1340) a Constitution Bench of the Supreme Court held that &quot; a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself .....&quot;. After referring to the decisions in Reserve Bank of India v. Peerless General Finance and Investment Co.Ltd., 1987 KHC850 AIR1987SC1023:</p><p>1987. (61) Comp Cas 663 :</p><p>1987. (1) SCC424and Kehar Singh v. State (Delhi Admn.), 1988 KHC1020:</p><p>1988. (3) SCC609:</p><p>1988. SCC (Cri) 711:</p><p>1988. (2) KLT SN47: AIR1988SC1883and various other decisions on the point, the Hon'ble Supreme Court in National Insurance Co.Ltd. v. Laxmi Narain Dhut, 2007 (1) KHC1054 2007 (3) SCC700:JT2007(4) SC169 ILR2007(2) Ker. 683 : AIR2007SC1563:</p><p>2007. (2) KLT470(SC) has considered how statute should be interpreted. The hon'ble Supreme Court held as follows: &quot;34. A statute is an edict of the Legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of those who make it and the duty of the Court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interprettion the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises difficulties because of various reasons, in as much as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convery a meaning which may be obscure. It is impossible even for the most imaginative Legislature to foresee all situations exhaustively and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in Cr.MC.Nos.5651/13&amp;1041/14 10 future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e., the true of legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. (see District Mining Officer and Others v. Tata Iron and Steel Co. and Another, JT2001(6) SC183.</p><p>35. It is also well settled that to arrive at the intention of the legislation depending on the objects for which the enactment is made, the Court can resort to historical, contextual and purposive interpretation leaving textual interpretation aside. Francis Bennion in his book &quot;Statutory Interpretation&quot; described &quot;purposive interpretation&quot; as under: &quot;A purposive construction of an enactment is one which gives effect to the legislative purpose by-- (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose&quot;. Here, in this case, there is no casus omissus also. Chief Judicial Magistrates in metropolitan areas are designated as Chief Metropolitan Magistrates and vice versa mutatis mutandis by implication and by reference to the area of jurisdiction. Chief Judicial Magistrate in a non metropolitan area stands in the same footing as Chief Metropolitan Magistrate in metropolitan area and, their designations are used synonymously to denote the authority depending upon where one is agree with the view of the learned Single Judge that in non metropolitan areas, apart from the District Magistrate, the powers can be exercised by the Chief Judicial Magistrate also. A similar view was taken by the Madras High Court in 7312 of 2004 (MANU/TN/7582/2006) and we are unable to agree Cr.MC.Nos.5651/13&amp;1041/14 11 with the decision of the Bombay High Court (Aurangabad) in IndusInd Bank Ltd. v. The State of Maharashtra in Crl.WP.Nos.214 and 215 of 2008 (MANU/MH/0375/2008) which took a contrary view)&quot;.</p><p>10. This was affirmed by another Division Bench of this Court in Radhakrishnan V.N' s case (supra). In that case also a request was made to refer the matter to a Larger Bench to consider the question as to whether the Chief Judicial Magistrate has got power to entertain the application under Section 14 of the SARFAESI Act and the Division Bench in that case held that there is no necessity to refer Muhammed Ashraf's case (supra) to a Larger Bench for consideration and concurred with the decision in Muhammed Ashraf's case (supra).</p><p>11. There is no dispute regarding the proposition laid down in the decisions reported in State of Mizoram v. Biakchhawna (1995 (1) SCC156, Chandra Kishore Jha v. Mahavir Prasad &amp; Others (1999 (8) SCC266, Babu Varghese &amp; Others v. Bar Council of Kerala &amp; Others (1999 (3) SCC422 and State of West Bengal v. M/s. B.K. Mondal &amp; Sons (AIR1962SC779 regarding the question as to whether the courts have got power to supply casus omissus when there is no ambiguity in the provisions and when certain Cr.MC.Nos.5651/13&amp;1041/14 12 procedures are provided under the statute, it has to be done in the same manner as it is provided etc. Further, in the decision reported in Raman Gopi v.Kunju Raman Uthaman (2011(4) KLT458, the Full Bench of this Court held that when a Bench of higher number of judges of the concerned court decided a question on the subject, then that is binding on the Bench of co- equal judges or lesser number of judges of that court. So, under the circumstances, the decisions on the subject rendered by two Division Benches of this Court in Muhammed Ashraf's case and Radhakrishnan V.N's case (supra) are binding on this Court. Further, it is settled law that, if a decision has been rendered by the same High Court , then any decision rendered by any other High Court is not binding on the other High Court but it has got only persuasive value. This was so held in the decision reported in Commissioner of Income Tax v. Tana Electricity Supply Ltd (1994 ITR727 relying on the decision reported in Madhava Rao Scindia v. Union of India (AIR1971SC530 held as follows: &quot;The general principles with regard to precedents are: (a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to Cr.MC.Nos.5651/13&amp;1041/14 13 review the same and depart from its earlier opinion if the situation so warrnts. What is binding is, of course, the ratio of the decision and not every expression found therein. (b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction. (c ) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court, may be summed up as follows: (i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comitty demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. (ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differes from another Division Bench of the same High Court, it should refer the case to a larger Bench. (iii) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions. (d) the decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its territorial jurisidiction&quot;.</p><p>12. The same view was reiterated by our High Court in the decision reported in Josekutty v. State of Kerala (2013 (1) KHC241 wherein it has been held that Single Judge is bound to follow the Division Bench decisions. The Single Judge cannot make a reference to Division Bench for the reason that the views Cr.MC.Nos.5651/13&amp;1041/14 14 of the Division Bench are not in agreement with his views. A Full Bench of this Court in Peter v. Sara (2006 KHC1450 = (2006 (4) KLT219 also expressed the same view. Further, another Single Bench of this Court in the decision reported in Federal Bank Ltd. v. Punnus (2013 (4) KLT578 has held that the Madras decision is not binding in view of the Division Bench decision of this Court on this aspect. In view of the above discussions, there is no merit in the submission made by the counsel for the petitioners that the Chief Judicial Magistrate has no jurisdiction to entertain the application under Section 14 of the SARFAESI Act and there is no need to refer the matter to a Larger Bench for reconsideration in view of the fact that, that request was turned down by a Division Bench of this Court in Radhakrishnan V.N's case (supra). Further, in the decision reported in Radhakrishnan V.N's case (supra), it has been held that since the proceedings sought to be challenged is not one taken under the provisions of the Criminal Procedure Code, but it is one under Section 14 of the SARFAESI Act, the application filed under Section 482 of the Code of Criminal Procedure is not maintainable in view of the statutory bar contained under Section 14(3) of the SARFAESI Act. Further in the decision reported in Standard Chartered Bank v. Noble Cr.MC.Nos.5651/13&amp;1041/14 15 Kumar (2013 (4) KLT531(SC), the Hon'ble Supreme Court has held that the remedy of the petitioners in such cases is to file appeal before the Debt Recovery Tribunal after dispossession under Section 17 of the Act. That was also a case went from Tamil Nadu against an action taken by the Chief Judicial Magistrate invoking the power under Section 14 of the SARFAESI Act. So, under the circumstances, there is no merit in these petitions and these petitions are liable to be dismissed. In the result, these petitions are dismissed. Sd/- K. RAMAKRISHNAN, JUDGE. cl /true copy/ PS to Judge Cr.MC.Nos.5651/13&amp;1041/14 16',
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		'id' => '1130918',
		'acts' => null,
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		'appellant' => 'Rosamma Joseph',
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		'casename' => 'Rosamma Joseph Vs. State of Kerala',
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		'judge' => 'HONOURABLE MR. JUSTICE K.RAMAKRISHNAN',
		'judgement' => '<p>IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE21T DAY OF FEBRUARY20142ND PHALGUNA, 1935 Crl.MC.No. 5651 of 2013 () --------------------------- CRL.M.P.NO. 498/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM --------------------- PETITIONERS / RESPONDENT IN CRL.M.P.498/2012 OF C.J.M. KOTTAYAM : ------------------------------------------------------------------------------------------------------------ 1. ROSAMMA JOSEPH, W/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, POOVARANY P.O., KOTTAYAM DISTRICT.</p><p>2. KIRAN JOSE S/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, POOVARANY P.O., KOTTAYAM DISTRICT. BY ADVS.SRI.PRAVEEN K. JOY SRI.G.MANU KRISHNAN SRI.T.A.JOY SRI.NIXON PAUL SRI.DINESH R.SHENOY RESPONDENTS/PETITIONERS IN CRL.M.P. 498/2012 AND STATE : --------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM.</p><p>2. STATE BANK OF TRAVANCORE ETTUMANNUR BRANCH POOVARANNY REP. BY THE AUTHORISED OFFICER CHIEF MANAGER (A.D.V.) REGION III ZONAL OFFICE, KOTTAYAM. R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE P. R2 BY ADV. SRI.SATHISH NINAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON1202-2014, THE COURT ON2102-2014 PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 5651 of 2013 () ------------------------------------- APPENDIX PETITIONERS' ANNEXURES : ------------------------------------------- ANNEXURE I- TRUE PHOTOCOPY OF THE CRIMINAL M.P.498/2012 DT. 3.4.2012 OF THE PETITION, BEFORE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE II- TRUE PHOTOCOPY OF THE PETITION IN C.M.P.2646/2013 IN CRL.M.P.498/2012 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE III- TRUE PHOTOCOPY OF THE THANDAPER RECORD DT. 1.11.2013 OF POOVARANNY VILLAGE AND SKETCH. ANNEXURE IV- TRUE PHOTOCOPY OF THE PROFESSIONAL CERTIFICATE DT. 23.5.2011 OF VILLAGE OFFICER, POOVARANNY. ANNEXURE V- TRUE COPY OF THE RELEVANT PAGES OF THE CITATION, 2013(4) KLT SN39CASE NO.34) MADRAS (F.B) IN AROCKIYARAJ-VS-CHIEF JUDICIAL MAGISTRATE DT. 27.8.2013. ANNEXURE VI- TRUE CERTIFIED COPY OF THE PROCEEDINGS AND </p>ORDER<p> DT. 4.11.2013 IN C.M.P.2646/2013 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE VII- TRUE RELEVANT PAGE OF THE DECISION REPORTED IN20133)KLT366(HOUSING DEVELOPMENT FINANCE CORPORATION LTD. VS. GOVERNMENT OF KERALA) IN WP(C) NO.16628 OF2013DT. 5.7.2013 OF THIS HON'BLE COURT. ANNEXURE VIII- TRUE PHOTOCOPY OF THE PROCEEDINGS DATED411.2013 IN C.M.P. 498/2012 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEXURE IX- TRUE PHOTOCOPY OF THE NOTICE DATED2211.2013 OF ADVOCATE COMMISSIONER AS PER </p>ORDER<p> IN C.M.P.498/2012 OF C.J.M. KOTTAYAM. RESPONDENT(S)' ANNEXURES : ------------------------------------------------ ANNEXURE R2(a) COPY OF THE </p>JUDGMENT<p> DATED222-2013 IN W.A. NO. 302/2013 OF THIS HONOURABLE COURT. ANNEXURE R2(b) COPY OF THE </p>ORDER<p> PASSED BY THE DEBTS RECOVERY TRIBUNAL,ERNAKULAM IN IA NO. 1043/2013 IN SA NO. 273/2013. ANNEXURE R2(c) COPY OF THE </p>JUDGMENT<p> DATED1811-2013 IN WP(C) NO. 28174/2013 OF THIS HONOURABLE COURT. ANNEXURE R2(d) COPY OF THE </p>JUDGMENT<p> DATED1812-2013 IN WA NO. 1860/2013 OF THIS HONOURABLE COURT. //TRUE COPY// P.S. TO JUDGE Mn &quot;CR&quot; K. RAMAKRISHNAN, J.</p><p>................................................. Crl.M.C.No.5651 of 2013 &amp; Crl.M.C.No.1041 of 2014 .................................................. Dated this the 21st day of February, 2014. </p></p>ORDER<p><p> Crl.M.C.No.5651/2013 was filed by the counter petitioners in Crl.M.P.No.498/2012 on the files of the Chief Judicial Magistrate Court, Kottayam, to set aside the order passed thereon under Section 482 of the Code of Criminal Procedure.</p><p>2. Crl.M.C.No.1041/2014 was also filed by the counter petitioners in CMP.No.132/2012 on the files of the Chief Judicial Magistrate Court, Palakkad, to quash the order passed thereon under Section 482 of the Code of Criminal Procedure.</p><p>3. In both these cases, the 2nd respondent Bank filed application before the Chief Judicial Magistrate Court in respective places seeking assistance to get delivery of the secured interest invoking Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act'). In both these cases, properties of the petitioners were mortgaged to the banks as security for availing loan and they Cr.MC.Nos.5651/13&amp;1041/14 2 have committed default. Thereafter, notice under Section 13(2) of the SARFAESI Act was sent to them. Since they have not sent any objection or paid the amount within the specified time provided under Section 13 of the Act, they filed applications seeking assistance of the Chief Judicial Magistrate to take possession of the property secured. The learned Chief Judicial Magistrate after satisfying the contents of the applications and the documents produced, appointed an Advocate Commissioner to take possession of the property and deliver the same to the bank. The action of the Chief Judicial Magistrate appointing Advocate Commissioner to deliver the property is being questioned before this Court by the petitioners in both these cases.</p><p>4. In both these cases, the common question raised by the respective learned counsel for the petitioners was regarding maintainability of the application before the Chief Judicial Magistrate Court under Section 14 of the SARFAESI Act. Since common question arose for consideration in both these cases, these petitions were disposed of by this Court by a common judgment.</p><p>5. The counsel for the petitioners submitted that by virtue of Section 14 of the SARFAESI Act only Chief Metropolitan Cr.MC.Nos.5651/13&amp;1041/14 3 Magistrate or District Magistrate alone is entitled to entertain the application for this purpose. So, the Chief Judicial Magistrate has no jurisdiction to entertain the petition under Section 14 of the SARFAESI Act. Further, they have also argued that, wherever the Judicial First Class Magistrate has to exercise power, it has been specifically mentioned under the SARFAESI Act and so it cannot be said that the legislature was not aware of the difference between Chief Judicial Magistrate and Chief Metropolitan Magistrate while using the terminology Chief Metropolitan Magistrate or District Magistrate in that section. According to the learned counsel, it is settled law that the courts cannot supply casus omissus and purposive interpretation also is not available for the purpose of supply of casus omissus in such cases as there is no ambiguity in the terminology used in the section. They have relied on the Full Bench decision of the Madras High Court in K. Arockiyaraj &amp; Others v. The Chief Judicial Magistrate, Srivilliputhur, Virudhunagar District &amp; Others (CDJ2013MHC3970, State of Mizoram v. Biakchhawna (1995 (1) SCC156, Chandra Kishore Jha v. Mahavir Prasad &amp; Others (1999 (8) SCC266, Babu Varghese &amp; Others v. Bar Council of Kerala &amp; Others (1999 (3) SCC422 and State of West Bengal v. M/s. B.K. Cr.MC.Nos.5651/13&amp;1041/14 4 Mondal &amp; Sons (AIR1962SC779 in support of the case and they wanted this Court to refer the matter to a Larger Bench to consider the question again as, according to them, the earlier two Division Benches of this Court did not consider the aspects, now considered by the Madras High Court and Bombay High Court in this regard.</p><p>6. On the other hand, the counsel for the respondents in both the cases submitted that it is clear from the intention of the Legislature that enacting the present Act itself was to provide a speedy remedy for enforcing the right of the financial institutions over their secured interest for realisation of the amount and wherever Chief Metropolitan Magistrates are not available, Chief Judicial Magistrates are vested with the power to do all the works of the Chief Metropolitan Magistrate. Two Division Benches of this Court in Muhammed Ashraf &amp; Another v. Union of India &amp; Others (2008 (3) KHC935 and Radhakrishnan V.N. v. State of Kerala &amp; another (ILR2008(4) Ker. 863) had held that the Chief Judicial Magistrates are empowered to do all the works of the Chief Metropolitan Magistrate in non metropolitan areas and in the latter decision, the request for reference to a Larger Bench for considering the same purpose was declined aswell. So, under the circumstances, Cr.MC.Nos.5651/13&amp;1041/14 5 there is no merit in the submission made by the counsel for the petitioners.</p><p>7. It is an admitted fact that in both these cases, the banks have filed applications before the respective Chief Judicial Magistrate Courts namely Kottayam and Palghat for enforcing their secured interest invoking Section 14 of the SARFAESI Act. Section 14 of the SARFAESI Act (as stood prior to amendment) reads as follows:</p><p>14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset:-(1) Where the possession of any secured assets is requird to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him- (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. (2) for the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any Cr.MC.Nos.5651/13&amp;1041/14 6 authority.</p><p>8. Though Section 14 of the SARFAESI Act was amended by Amendment Act 1 of 2013, which came into force from 4.1.2013, there is no change made by the amendment to Section 14(1) of the SARFAESI Act.</p><p>9. It is true that, in Section 14 it has been mentioned that, the application has to be filed before the Chief Metropolitan Magistrate or District Magistrate. In the decision reported in Arockiyaraj's case (supra), the Full Bench of the Madras High relying on the decisions of Bombay High Court in IndusInd Bank Ltd. v. The State of Maharashtra (CDJ2008BHC520 and Arjun Urban Co-operative Bank Ltd., Solapur v. C.J.M. Solapur Court [2009 (2) D.R.T.C431(Bom)] held that only Chief Metropolitan Magistrates or District Magistrates are empowered to entertain the application under Section 14 of the SARFAESI Act. But, the Division Bench of this Court in Muhammed Ashraf &amp; Another v. Union of India &amp; Others (2008 (3) KHC935 has held that the powers of the Chief Judicial Magistrate in non metropolitan area and the Chief Metropolitan Magistrate in metropolitan area are one and the same and the application under Section 14 of the SARFAESI Act can be entertained by the Chief Judicial Cr.MC.Nos.5651/13&amp;1041/14 7 Magistrate in a non metropolitan area. The question whether this is casus omissus was considered by the Division Bench in para 5 of the decision which reads as follows: &quot;5. Learned counsel for the petitioners argued that so long as the word 'Chief Judicial Maistrate' is not mentioned in S.14 of the Securitisation Act, merely beause Chief Metropolitan Magistrate is mentioned in S.14, it cannot be stated that Chief Judicial Magistrate in non metropolitan areas also has the power under S.14. Relying on the decison of the Hon'ble Supreme Court in M/s. Unique Butyle Tube Industries Pvt. Ltd. v. U.P. Financial Corporation and Others, 2003 HKC852 2003 (2) SCC455 2003 (113) Comp Cas 374:</p><p>2003. All LJ427 AIR2003SC2103it was argued that the Court cannot supply the omissions by the Legislature. While interpreting a provision, the Court only interprets the law and cannot legislate it. It is for the legislature to amend, modify or repeal it if it is deemed necessary. By the principle of casus omissus, Court cannot supply the law. In the above case, the Hon'ble Supreme Court was considering the Recovery Debts Due to Banks and Financial Institutions Act (RDBI Act). Under S.34 (1) of the above Act, it was mentioned that the provisons of that Act have overriding effect over other Acts. But, the question is whether RDBI Act was enacted in addition to other acts. Sub-section (2) of S.34 of the above Act provides that it is in addition to certain specified Acts like Financial Corporation Act etc. Uttar Predesh Public Monies (Recovery of Dues )Act, 1972 (UP. Act) was not included under S.34(2)of the RDBI Act. Therefore, the Hon'ble Supreme Court has held that Financial Corporation can approach for recovery of dues under the RDBI Act or under the Financial Corporation Act, but, not under the U.P.Act, 1972 as it was not enacted in additon to the U.P.Act, 1972. Here, the position is entirely different. The question is whether the term &quot;Chief Metropolitan Magistrate&quot; in metropolitan areas will include Chief Judicial Magistrate in non metropolitan areas. We are of the view that legislation has to be understood Cr.MC.Nos.5651/13&amp;1041/14 8 in a reasonable manner. In the context of the definition in the Cr.PC, it can be gathered that a Chief Judicial Magistrate in non metropolitan area and Chief Metropolitan Magistrate in metropolitan area are used in legal parlance similarly. As held in Holmes v. Bradfield Rural District Council, 1949 (1) All ER381(page 384) and Nasiruddin v. State Transport Appelate Tribunal, 1975 (2) SCC6711976 (1) SCR505: AIR1976SC331(page 338) this Court has to adopt 'just reasonable and sensible' interpretation. In this connection, we refer to the following observations of the Denning L.J.</p><p>in Seaford Court Estates Ltd. v. Asher, 1949 (2) All ER155 p. 164 (CA): &quot;When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases&quot;. Though the above view was criticised by House of Lords in Magor and St. Mellons R.D.C v. Newport Corporation, 1951 (2) All ER839(HL), it was quoted with approval by the Hon'ble Supreme Court in M. Pentiah v. Muddala Veeramallapa, 1961 (2) SCA249 1961 (2) SCR295 1963 (1) SCJ768 AIR1961SC1107 Bangalore Water Supply v. A. Rajappa, 1978 (2) SCC213 1978 Lab IC467 1978 (1) Lab LJ349 1978 SCC (Lab) 215:</p><p>1978. CLNR96 1978 (1) SCJ481:AIR1978SC548at.p.552 ,561, NEPC Micon Ltd.v.Magna Leasing Ltd. 1999 KHC488 1999 (2) KLT SN45 1999 (2) KLJ59:</p><p>1999. (2) KLJ NOC17 1999 (4)SCC253 AIR1999SC1952 p. 1957) etc. But, House of Lords in Inco Europe Ltd. and Others v. First Choice Distribution (a firm) and Others, 2000 (2) All ER109 p. 115) held that Court can add words in its interpretative process in suitable cases if omission or inadevertence of drafting is noticed, to give effect to the purpose of the Legislature. In Padmasundara Rao v. State of T.N., 2002 KHC575 Cr.MC.Nos.5651/13&amp;1041/14 9 2002 (2) KLT SN44 202 (2) KLJ NOC1:</p><p>2002. (3) SCC533 AIR2002SC1334p. 1340) a Constitution Bench of the Supreme Court held that &quot; a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself .....&quot;. After referring to the decisions in Reserve Bank of India v. Peerless General Finance and Investment Co.Ltd., 1987 KHC850 AIR1987SC1023:</p><p>1987. (61) Comp Cas 663 :</p><p>1987. (1) SCC424and Kehar Singh v. State (Delhi Admn.), 1988 KHC1020:</p><p>1988. (3) SCC609:</p><p>1988. SCC (Cri) 711:</p><p>1988. (2) KLT SN47: AIR1988SC1883and various other decisions on the point, the Hon'ble Supreme Court in National Insurance Co.Ltd. v. Laxmi Narain Dhut, 2007 (1) KHC1054 2007 (3) SCC700:JT2007(4) SC169 ILR2007(2) Ker. 683 : AIR2007SC1563:</p><p>2007. (2) KLT470(SC) has considered how statute should be interpreted. The hon'ble Supreme Court held as follows: &quot;34. A statute is an edict of the Legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of those who make it and the duty of the Court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interprettion the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises difficulties because of various reasons, in as much as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convery a meaning which may be obscure. It is impossible even for the most imaginative Legislature to foresee all situations exhaustively and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in Cr.MC.Nos.5651/13&amp;1041/14 10 future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e., the true of legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. (see District Mining Officer and Others v. Tata Iron and Steel Co. and Another, JT2001(6) SC183.</p><p>35. It is also well settled that to arrive at the intention of the legislation depending on the objects for which the enactment is made, the Court can resort to historical, contextual and purposive interpretation leaving textual interpretation aside. Francis Bennion in his book &quot;Statutory Interpretation&quot; described &quot;purposive interpretation&quot; as under: &quot;A purposive construction of an enactment is one which gives effect to the legislative purpose by-- (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose&quot;. Here, in this case, there is no casus omissus also. Chief Judicial Magistrates in metropolitan areas are designated as Chief Metropolitan Magistrates and vice versa mutatis mutandis by implication and by reference to the area of jurisdiction. Chief Judicial Magistrate in a non metropolitan area stands in the same footing as Chief Metropolitan Magistrate in metropolitan area and, their designations are used synonymously to denote the authority depending upon where one is agree with the view of the learned Single Judge that in non metropolitan areas, apart from the District Magistrate, the powers can be exercised by the Chief Judicial Magistrate also. A similar view was taken by the Madras High Court in 7312 of 2004 (MANU/TN/7582/2006) and we are unable to agree Cr.MC.Nos.5651/13&amp;1041/14 11 with the decision of the Bombay High Court (Aurangabad) in IndusInd Bank Ltd. v. The State of Maharashtra in Crl.WP.Nos.214 and 215 of 2008 (MANU/MH/0375/2008) which took a contrary view)&quot;.</p><p>10. This was affirmed by another Division Bench of this Court in Radhakrishnan V.N' s case (supra). In that case also a request was made to refer the matter to a Larger Bench to consider the question as to whether the Chief Judicial Magistrate has got power to entertain the application under Section 14 of the SARFAESI Act and the Division Bench in that case held that there is no necessity to refer Muhammed Ashraf's case (supra) to a Larger Bench for consideration and concurred with the decision in Muhammed Ashraf's case (supra).</p><p>11. There is no dispute regarding the proposition laid down in the decisions reported in State of Mizoram v. Biakchhawna (1995 (1) SCC156, Chandra Kishore Jha v. Mahavir Prasad &amp; Others (1999 (8) SCC266, Babu Varghese &amp; Others v. Bar Council of Kerala &amp; Others (1999 (3) SCC422 and State of West Bengal v. M/s. B.K. Mondal &amp; Sons (AIR1962SC779 regarding the question as to whether the courts have got power to supply casus omissus when there is no ambiguity in the provisions and when certain Cr.MC.Nos.5651/13&amp;1041/14 12 procedures are provided under the statute, it has to be done in the same manner as it is provided etc. Further, in the decision reported in Raman Gopi v.Kunju Raman Uthaman (2011(4) KLT458, the Full Bench of this Court held that when a Bench of higher number of judges of the concerned court decided a question on the subject, then that is binding on the Bench of co- equal judges or lesser number of judges of that court. So, under the circumstances, the decisions on the subject rendered by two Division Benches of this Court in Muhammed Ashraf's case and Radhakrishnan V.N's case (supra) are binding on this Court. Further, it is settled law that, if a decision has been rendered by the same High Court , then any decision rendered by any other High Court is not binding on the other High Court but it has got only persuasive value. This was so held in the decision reported in Commissioner of Income Tax v. Tana Electricity Supply Ltd (1994 ITR727 relying on the decision reported in Madhava Rao Scindia v. Union of India (AIR1971SC530 held as follows: &quot;The general principles with regard to precedents are: (a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to Cr.MC.Nos.5651/13&amp;1041/14 13 review the same and depart from its earlier opinion if the situation so warrnts. What is binding is, of course, the ratio of the decision and not every expression found therein. (b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction. (c ) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court, may be summed up as follows: (i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comitty demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. (ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differes from another Division Bench of the same High Court, it should refer the case to a larger Bench. (iii) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions. (d) the decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its territorial jurisidiction&quot;.</p><p>12. The same view was reiterated by our High Court in the decision reported in Josekutty v. State of Kerala (2013 (1) KHC241 wherein it has been held that Single Judge is bound to follow the Division Bench decisions. The Single Judge cannot make a reference to Division Bench for the reason that the views Cr.MC.Nos.5651/13&amp;1041/14 14 of the Division Bench are not in agreement with his views. A Full Bench of this Court in Peter v. Sara (2006 KHC1450 = (2006 (4) KLT219 also expressed the same view. Further, another Single Bench of this Court in the decision reported in Federal Bank Ltd. v. Punnus (2013 (4) KLT578 has held that the Madras decision is not binding in view of the Division Bench decision of this Court on this aspect. In view of the above discussions, there is no merit in the submission made by the counsel for the petitioners that the Chief Judicial Magistrate has no jurisdiction to entertain the application under Section 14 of the SARFAESI Act and there is no need to refer the matter to a Larger Bench for reconsideration in view of the fact that, that request was turned down by a Division Bench of this Court in Radhakrishnan V.N's case (supra). Further, in the decision reported in Radhakrishnan V.N's case (supra), it has been held that since the proceedings sought to be challenged is not one taken under the provisions of the Criminal Procedure Code, but it is one under Section 14 of the SARFAESI Act, the application filed under Section 482 of the Code of Criminal Procedure is not maintainable in view of the statutory bar contained under Section 14(3) of the SARFAESI Act. Further in the decision reported in Standard Chartered Bank v. Noble Cr.MC.Nos.5651/13&amp;1041/14 15 Kumar (2013 (4) KLT531(SC), the Hon'ble Supreme Court has held that the remedy of the petitioners in such cases is to file appeal before the Debt Recovery Tribunal after dispossession under Section 17 of the Act. That was also a case went from Tamil Nadu against an action taken by the Chief Judicial Magistrate invoking the power under Section 14 of the SARFAESI Act. So, under the circumstances, there is no merit in these petitions and these petitions are liable to be dismissed. In the result, these petitions are dismissed. Sd/- K. RAMAKRISHNAN, JUDGE. cl /true copy/ PS to Judge Cr.MC.Nos.5651/13&amp;1041/14 16',
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LAW: Section 482, Section 482, Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, the SARFAESI Act', Section 13(2, the SARFAESI Act, Section 13 of the Act, Section 14, the SARFAESI Act, Section 14, Section 14, the SARFAESI Act, the SARFAESI Act, Section 14, the SARFAESI Act, Section 14, the SARFAESI Act, Section 14, the SARFAESI Act, Amendment Act 1 of 2013, Section 14(1, Section 14, Section 14, the SARFAESI Act, Section 14, the SARFAESI Act, the Securitisation Act, the RDBI Act, the RDBI Act, the Financial Corporation Act, Section 14, the SARFAESI Act, Section 14, the SARFAESI Act, the Criminal Procedure Code, Section 14, the SARFAESI Act, Section 482, Section 14(3, the SARFAESI Act, Section 17, Section 14, the SARFAESI Act

GPE: K.RAMAKRISHNAN, KLT, F.B, P.S., K. RAMAKRISHNAN, Crl, CDJ2013MHC3970, District Magistrates, S.14, Holmes, Nasiruddin, KLT, KLT, KLT, Legislatures, Cr, Crl, Radhakrishnan V.N', India, Cr, jurisidiction".12, Josekutty v. State, Kerala, Cr, Radhakrishnan V.N's, Radhakrishnan V.N's

DATE: FRIDAY, 5651 of 2013, CRL.M.P. 498/2012, 5651 of 2013, 2013, 1043/2013, 2013, 28174/2013, 2013, 1860/2013, 2014, this the 21st day of February, 2014, 2002, 1995, 1999, 1999, 2008, 2009, 2008, 2003, 1972, 1972, 1972, 1949, 1975, 1949, 1951, 1961, 1961, 1963, 1978, 1978, IC467 1978, CLNR96 1978, 1999, KHC488 1999, 1999, 1999, 1957, 2000, 2002, 9 2002, 1340, 1987, 1987, 1988, 2007, 2007, 7312 of 2004, 1995, 1999, 1999, 1994, 2013, 2006, 2006, 2013, 2013

PERSON: MC.No, ROSAMMA JOSEPH, GEORGE P. R2, MC.No, MADRAS, Crl, M.C.No.5651/2013, Kottayam, M.C.No.1041/2014, Palakkad, Cr, Judicial Magistrate, cases.4, Metropolitan Cr, Judicial Magistrate, Metropolitan Magistrate, Metropolitan Magistrate, Judicial Magistrate, Srivilliputhur, Chandra Kishore Jha v. Mahavir Prasad &, Metropolitan Magistrates, Judicial Magistrates, Radhakrishnan V.N. v. State, Judicial Magistrates, Cr, Metropolitan Magistrate, Cr, Solapur v. C.J.M. Solapur Court, Metropolitan Magistrates, Judicial Cr, Metropolitan Magistrate, Judicial Magistrate, S.14, S.34, S.34, Judicial Magistrate, Cr, Judicial Magistrate, Metropolitan Magistrate, creases&quot, Muddala Veeramallapa, A. Rajappa, Lab LJ349 1978, KLJ59:1999, Padmasundara Rao v. State, KHC575 Cr, Kehar Singh v. State, Delhi Admn, SCC, Laxmi Narain Dhut, Francis Bennion, purpose&quot, Judicial Magistrates, Metropolitan Magistrates, Judicial Magistrate, Cr, Muhammed Ashraf's, Chandra Kishore Jha v. Mahavir Prasad &, Cr, Raman Gopi v., Radhakrishnan V.N's, Madhava Rao Scindia v. Union of India, Peter v. Sara, KLT578, Madras, Noble Cr, Kumar, Tamil Nadu, Sd/- K. RAMAKRISHNAN, Cr

ORG: CRL.M.P.NO, KOTTAYAM, W/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, KIRAN JOSE S/O. LATE JOSEPH KALAYATHINKUZHIYIL HOUSE VILAKKUMADAM, PAUL, STATE BANK OF TRAVANCORE ETTUMANNUR BRANCH POOVARANNY REP, KOTTAYAM, ADV, NINAN, KOTTAYAM, KOTTAYAM, KOTTAYAM, KOTTAYAM, RESPONDENT(S, DEBTS, SA NO, Mn "CR&quot, the Chief Judicial Magistrate Court, CMP.No.132/2012, the Chief Judicial Magistrate Court, Bank, the Chief Judicial Magistrate Court, the Chief Judicial Magistrate, the Chief Judicial Magistrate, Court, the Chief Judicial Magistrate Court, Court, Magistrate, District Magistrate, the Chief Judicial Magistrate, District Magistrate, K. Arockiyaraj &, Virudhunagar District &, State of Mizoram v. Biakchhawna, Babu Varghese &amp, Others v. Bar Council of Kerala &, State, Mondal &amp, Sons, Court, Division Benches, Court, the Madras High Court, Bombay High Court, Legislature, the Chief Metropolitan Magistrate, Muhammed Ashraf &amp, Another v. Union of India &amp, Kerala &amp, ILR2008(4, the Chief Metropolitan Magistrate, Judicial Magistrate Courts, Kottayam, District Magistrate, Magistrate, the District Magistrate, the Chief Metropolitan Magistrate, District Magistrate, the Chief Metropolitan Magistrate, the District Magistrate, the Chief Metropolitan Magistrate, the District Magistrate, the Chief Metropolitan Magistrate, District Magistrate, Arockiyaraj, Bombay High Court, IndusInd Bank Ltd., The State of Maharashtra, Arjun Urban Co-operative, Bank Ltd., Muhammed Ashraf &amp, Another v. Union of India &amp, the Chief Judicial Magistrate, the Chief Metropolitan Magistrate, the Division Bench, the Hon'ble Supreme Court, U.P. Financial Corporation and Others, Court, Legislature, Court, Court, the Hon'ble Supreme Court, the Recovery Debts Due to, Financial Corporation Act, Uttar Predesh Public Monies, the Hon'ble Supreme Court, Financial Corporation, Bradfield Rural District Council, State Transport Appelate Tribunal, Court, Seaford Court Estates Ltd., Asher, CA, Parliament, Legislature, House of Lords, Magor, Newport Corporation, the Hon'ble Supreme Court, Magna Leasing Ltd., KLJ, AIR1999SC1952, House of Lords, Inco Europe Ltd., Others v. First Choice Distribution, Court, Legislature, T.N., the Supreme Court, Court, Reserve Bank of India, Peerless General Finance and Investment Co.Ltd., the Hon'ble Supreme Court, National Insurance Co.Ltd., Supreme Court, Legislature, Court, Legislature, Court, Legislature, Legislature, State, Legislature, District Mining Officer, Tata Iron and Steel Co., JT2001(6, Court, "purposive interpretation&quot, the District Magistrate, the Chief Judicial Magistrate, the Bombay High Court, IndusInd Bank Ltd., The State of Maharashtra, MANU/MH/0375/2008, Court, the Chief Judicial Magistrate, Muhammed Ashraf's, State of Mizoram v. Biakchhawna, Babu Varghese &amp, Others v. Bar Council of Kerala &, State, B.K. Mondal &amp, Sons, Court, Bench, Division Benches, Court, Income Tax v. Tana Electricity Supply Ltd, the Supreme Court, the Supreme Court, the Supreme Court, the High Court, a High Court, Division Bench, Court, Court, Federal Bank Ltd., Division Bench, Court, the Chief Judicial Magistrate, Court, Standard Chartered Bank, the Hon'ble Supreme Court, the Debt Recovery Tribunal, the Chief Judicial Magistrate, PS

CARDINAL: 498/2012, 1, 1, 3.4.2012, 23.5.2011, 2013(4, 4.11.2013, 5.7.2013, 498/2012, 273/2013, 2, 3, 1, 8), 3, 4, two, Two, 3, 863, 5, 2, 1, 3, 6, 4.1.2013, 2, 3, 5, 2, 113, 1, 2, 8, 1, 384, 2, 1, 338, 2, 164, 2, 2, 2, 1, 2, 1, 215:1978, 1, 561, 2, 2, 2, 4)SCC253, 2, 115, 2, 202, 2, 3, four, 61, 663, 1, 3, 2, 1, 3, 683, 2, more than one, 10, 11, 215, 1, 8), 3, 12, 2011(4, two, 13, one, one, 1, 14, 4, one, 15, 4, 16

ORDINAL: 2nd

PRODUCT: the Full Bench, the Full Bench of, a Full Bench, Bench, another Single Bench

LOC: Madras, M. Pentiah, Single, Single

NORP: S.14