IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
OP(CRL.) NO. 188 OF 2022
MC 19/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II,PATHANAMTHITTA
PETITIONERS/RESPONDENTS NO.1&2:
1 SHAIKH SHINOS SAINUDDIN, AGED 38 YEARS, S/O
SAINUDDIN, KANDATHINKARAYIL HOUSE, ARUVAPPULAM
MURI, P.O & VILLAGE, KONNI TALUK,PATHANAMTHITTA
DISTRICT, PIN-689 699
2 SAINUDDIN, AGED 68 YEARS, S/O PUTHUMA RAWTHER,
KANDATHINKARAYIL HOUSE, ARUVAPPULAM MURI, P.O &
VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT,
PIN - 689699
BY ADVS.
MANU RAMACHANDRAN
M.KIRANLAL
T.S.SARATH
R.RAJESH (VARKALA)
SAMEER M NAIR
HARSHA SUSAN SAM
GEETHU KRISHNAN
RESPONDENTS/COMPLAINANT&RESPONDENTS 3&4:
1 SHAMEENA P. ISMAIL, AGED 38 YEARS, S/O M.S
ISMAIL, S.S MANZIL, ARUVAPPULAM MURI, P.O &
VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT,
PIN 689699
2 SARA BEEVI, AGED 58 YEARS, W/O SAINUDDIN,
KANDATHINKARAYIL HOUSE, ARUVAPPULAM MURI, P.O &
VILLAGE,KONNI TALUK, PATHANAMTHITTA DISTRICT, PIN
689699
3 SHAIKH SABEENA, AGED 42 YEARS, W/O HANEEFA A.S,
KANDATHINKARAYIL HOUSE, ARUVAPPULAM MURI, P.O &
VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT,
PIN - 689699
BY ADV ANSU VARGHESE
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(Crl).No.188/2022
..2..
JUDGMENT
Dated this the 1st day of June, 2022 Exts.P5 and P7 orders passed by the Judicial First Class Magistrate Court, Pathanamthitta in M.C(DV) No.19/2015 are under challenge in this Original Petition.
2. The 1st petitioner is the husband of the 1st respondent herein. The 2nd petitioner is the father of the 1st petitioner. The 2nd and 3rd respondents herein are the mother and sister of the 1st petitioner. They were not in India.
3. The 1st respondent herein filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'DV Act') against the petitioners and respondents 2 and 3 herein claiming various reliefs. One of the reliefs is for return of gold ornaments. A joint bank locker has been started in the name of the 1 st petitioner and the 1st respondent at State Bank of India, Kallely Branch. It is alleged that some of the gold ornaments belonging to the 1 st respondent are kept in the said bank locker. According to the petitioners some gold ornaments given by the 1 st petitioner to OP(Crl).No.188/2022 ..3..
the 1st respondent are also kept in the said locker.
4. In order to take an inventory of the gold ornaments kept in the bank locker, Ext.P4 petition has been filed by the petitioners at the court below for appointment of an Advocate Commissioner for the said purpose. The court below dismissed the said application holding that no such prayer can be granted invoking Sections 284 and 285 of Cr.P.C. Thereafter Ext.P6 application has been filed by the 1st petitioner invoking Section 12 and 28(2) of the DV Act to appoint an Advocate Commissioner for the very same purpose. The court below dismissed the said application as per Ext.P7 order. Exts.P5 and P7 are under challenge in this Original Petition.
5. Even though notice has been issued to the 1 st respondent through special messenger, notice could not be served, as she was not available in the address. Hence, this court passed an order to serve notice to the counsel appearing for the 1st respondent. Today, the learned counsel for the petitioner filed an affidavit stating that even though he made attempt to serve notice to the counsel, it could not be done because the counsel evaded the notice. Hence, notice has OP(Crl).No.188/2022 ..4..
been issued to the email of the counsel. In these circumstances, I hold that there is constructive service of notice.
6. The court below dismissed the prayer mainly holding that Section 284 or 285 of Cr.P.C. does not permit the appointment of a Commissioner. However, Section 28(2) of the DV Act says that nothing in Sub Section (1) shall prevent the court from laying down its own procedure for disposal of an application u/s.12 or under Sub Section (2) of Section 22. Hence, I am of the view that there is no bar in appointing the Commissioner to take inventory of the gold ornaments in the locker. It appears that it is necessary for the proper disposal of the MC to take an inventory of the gold ornaments.
For the reasons stated above, the Original Petition is allowed. The impugned orders are set aside. Ext.P4 petition stands allowed.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE ded/01.06.2022 OP(Crl).No.188/2022 ..5..
APPENDIX OF OP(CRL.) 188/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE COMPLAINT IN M.C(D.V) NO.19/2015 ON THE FILES OF JFMC-II, PATHANAMTHITTA Exhibit P2 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS/RESPONDENT NO.1 & 2 TO EXT.P1 COMPLAINT IN M.C(D.V) NO.19/2015 ON THE FILES OF JFMC-II, PATHANAMTHITTA Exhibit P3 THE TRUE COPY OF THE ORDER DATED 10.05.2017 IN CMP NO.468/2017 IN MC NO.19/15 ON THE FILES OF JFMC-II, PATHANAMTHITTA Exhibit P4 THE TRUE COPY OF THE CRL.MP NO.895/2022 IN M.C(D.V) NO.19/2015 ON THE FILES OF JFMC-II, PATHANAMTHITTA FILED BY THE PETITIONERS/RESPONDENT NO.1 & 2 .
Exhibit P5 THE TRUE COPY OF THE ORDER DATED 19.03.2022 IN CRL.MP NO.895/2022 IN M.C(D.V) NO.19/2015 ON THE FILES OF JFMC-II, PATHANAMTHITTA Exhibit P6 THE TRUE COPY OF THE CRL.MP NO.949/2022 IN M.C(D.V) NO.19/2015 ON THE FILES OF JFMC-II, PATHANAMTHITTA Exhibit P7 THE TRUE COPY OF THE ORDER DATED 19.03.2022 IN CRL.MP NO.949/2022 IN M.C(D.V) NO.19/2015 ON THE FILES OF JFMC-II, PATHANAMTHITTA RESPONDENT'S/S EXHIBITS : NIL.
//TRUE COPY// P.A. TO JUDGE