RADHAKRISHNAN V N Vs. STATE OF KERALA

JUDGEMENT

(1.) This criminal miscellaneous case has come up before the Division Bench for admission, on a reference made by a learned single Judge of this Court. The reference order reads as follows:

(2.) Before considering the above legal question referred, we think, it will be fruitful to refer the skeletal facts necessary for the disposal of this matter. The petitioner, along with others, is indebted to the State Bank of Travancore, Ranni Branch, the Manager of which is the second respondent herein. The mortgaged assets of the defaulters are going to be taken over by the Bank under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the Act'). Notice under Section 13(2) of the Act was already issued. Now the stage has reached to take over the property physically. So, the Bank moved the Chief Judicial Magistrate, Pathanamthitta under Section 14 of the Act. The learned Magistrate appointed Mr. Nishad, Advocate, as the CRL. M.C. No. 4369 /2008 -4- Advocate Commissioner, who is the second respondent in W.P. (C).No. 33084/08, a copy of which is produced as Annexure-2 in this Crl. M.C., to take over the property and deliver the same to the Bank. The said Commissioner has issued Annexure-1 notice to the petitioner and his brother, pursuant to the orders passed by the learned Chief Judicial Magistrate under Section 14 of the Act. This Crl. M.C. was filed to quash the proceedings of the Chief Judicial Magistrate, Pathanamthitta in the application made by the Bank under Section 14, which was numbered as Crl. M.P. No. 4276/2008 of that court.

(3.) The point raised for our consideration by the learned counsel for the petitioner is that the decision of the Division Bench of this Court in Muhammed Ashraf v. Union of India, 2008 3 KerLT 542 requires reconsideration. The Division Bench in that decision took the view that the Chief Judicial Magistrate in a non-metropolitan area can exercise the powers of the Chief Metropolitan Magistrate in a metropolitan area under Section 14 of the Act. The learned counsel for the petitioner pointed out that the Division Bench rendered the decision without adverting to Section 3(4) of the Code of Criminal Procedure. The functions CRL. M.C. No. 4369 /2008 -5- discharged by the Magistrate under Section 14 of the Act are essentially administrative and not judicial. So, the Chief Judicial Magistrate, who is to discharge only judicial functions, cannot be asked to discharge the administrative or non-judicial function under Section 14 of the Act. So, the interpretation given to Section 14 of the Act by the Division Bench in the above decision requires reconsideration. Based on that submission, the learned single Judge, who heard the matter, prima facie, held that the above point requires reconsideration by a Division Bench, so that if it appeals to the Division Bench, the matter can be referred to the Full Bench.