Abdul Kareem M.T. vs State Of Kerala
2021 Latest Caselaw 3723 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MR. JUSTICE P.SOMARAJAN

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                    Crl.MC.No.7926 OF 2018(A)

  AGAINST THE ORDER IN MC 65/2018 OF SUB DIVISIONAL MAGISTRATE,
                         PERINTHALMANNA

PETITIONERS/B PARTY IN M.C:
       1     ABDUL KAREEM M.T., S/o ALAVI HAJI,
             MANNARTHODIKA HOUSE, PALAKKODE,
             CHATHANGOTTUPURAM, WANDOOR, PIN 670328

      2      MUHAMMED MADASSERY, S/O. ENI, PALAKKODE,
             CHATHANGOTTUPURAM, WANDOOR, PIN 670328

      3      ASSAINAR KURIKKAL, S/o ABDULLA KURIKKAL,
             IRUNNAPETTI, PALAKKODE, PUNNAPPALA,
             WANDOOR, PIN 679328

      4      SAINUDEEN FAISY, S/o AHAMMEDKUTTY MUSLIYAR,
             PALAKKODE, CHATHANGOTTUPURAM, WANDOOR, PIN 679328

             BY ADV. SRI.T.H.ABDUL AZEEZ

RESPONDENTS/A PARTY IN M.C.:

      1      STATE OF KERALA,
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM 682031

      2      T.P. ABDUL SALAM, S/o ALAVIKUTTY, SECRETARY,
             PALAKKODE ISSATHUL ISLAM SANGHOM, P.O. PUNNAPPALA,
             WANDOOR, PIN - 679 328.

      3      T.P. MAMMED HAJI KURIKKAL, S/o UNNI HASSAN,
             PRESIDENT, PALAKKODE ISSATHUL ISLAM SANGHOM,
             P.O. PUNNAPPALA, WANDOOR, PIN - 679 328.

      4      MOHAMMED KURIKKAL ALIAS MANU,
             S/o ABDULLAKUTTY KURIKKAL, PALAKKODE,
             CHANTHANGOTTUPURAM P.O., WANDOOR, PIN - 679 326.

      5      V. ABDUL KAREEM, S/o AHAMMEDKUTTY,
             VADAKKETHODIKA HOUSE, PALAKKODE,
             CHATHANGOTTUPURAM P.O., WANDOOR - 679 326.

             R2-5 BY ADV. SRI.K.RAKESH
             R1 BY PUBLIC PROSECUTOR SRI. RAMESH CHAND
     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD           ON
02.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.7926 of 2018                 2




                                   ORDER

The order under Section 146 Cr.P.C. is under

challenge on the ground that the civil suit instituted

was ended in dismissal and that the order appointing a

receiver to take up possession of property in dispute

in view of the decree passed cannot be sustained.

2. The jurisdiction vested with the Executive

Magistrate to appoint a Receiver under Section 146

Cr.P.C. is subject to a decree that may be passed by a

competent court determining the rights of parties

thereto with regard to the person entitled to

possession thereof. In the matter of appointment of

Receiver, it must be subject to the restriction imposed

under sub-section (2) of Section 146 Cr.P.C. and

Receiver can be appointed only when no Receiver was

appointed by the civil court to take possession thereof

or look after the property. A civil suit for injunction

simplicitor was ended in dismissal by which no Receiver

or any other competent person was appointed either to

take possession or administration of the disputed

property. No suit was filed regarding the title of the

property or right to administer the property and right

to take possession thereof. It was submitted by the

petitioners that they are intending to file a suit for

declaration and possession. Subject to the jurisdiction

that may be exercised by the civil court either in the

matter of taking possession/delivery of property or

appointing a Receiver to take over the administration

or possession of the property, the Executive Magistrate

can very well exercise its jurisdiction both under

Section 145 and 146 Cr.P.C. As such, the present

Crl.M.C. can only be dismissed. I do so.

Crl.M.C. is dismissed.

Sd/-

                                                 P.SOMARAJAN

DMR/-                                               JUDGE





              APPENDIX OF Crl.MC 7926/2018
PETITIONERS' ANNEXURES:

ANNEXURE-I                TRUE COPY OF THE JUDGMENT IN A.S.NO.45 OF

2016 DATED 26.07.2018 OF SUB COURT, MANJERI.

ANNEXURE-II TRUE COPY OF THE F.I.R. IN CRIME NO.

151/2018 OF THE WANDOOR POLICE STATION.

ANNEXURE-III CERTIFIED COPY OF THE ORDER DATED 26.09.2018 IN M.C. NO. 65/2018 OF THE SUB DIVISIONAL MAGISTRATE, PERINTHALMANNA.

RESPONDENTS' ANNEXURE:       NIL



                                               // TRUE COPY   //


                                                P.A. TO JUDGE