The interpretation of statutory provisions and the applicability of specific legal provisions in determining jurisdiction and maintainability of petitions under the Code of Criminal Procedure.

Balakrishnan Nair, J.

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:

"In a non-metropolitan area is it the District Magistrate (Executive Magistrate) or the Chief Judicial Magistrate (Judicial Magistrate) who is to exercise the jurisdiction under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the Act)? This is the question raised again before this Court in this Crl.M.C.

2. The question appears to have been concluded by the decision of the Division Bench of this Court in Muhammed Ashraf v. Union of India (2008 (4) KLT 1). But the learned counsel for the petitioner contends that the said decision requires re-consideration for the short reason that the attention of the Division Bench has not been drawn to the provisions of Section 3(4) of Cr.P.C.

3. The counsel points out that the decision in Muhammed Ashraf (supra) very clearly shows that the jurisdiction under Section 14 of the Act is not judicial in nature. But while considering whether the jurisdiction under Section 14 of the Act must be exercised exclusively by an Executive Magistrate or the Chief Judicial Magistrate in a non-metropolitan area, the learned Judges have not considered the provisions of Section 3(4) Cr.P.C., which according to the counsel, must be reckoned to be of crucial assistance in resolving the controversy. The learned counsel further points out that the decision of the Full Bench in Mammoo v. State of Kerala (AIR 1980 Kerala 18) has not been brought to the notice of the learned Judges of the Division Bench. The learned counsel for the petitioner advances a contention strenuously that at least in respect of non-metropolitan areas the jurisdiction under Section 14, which is essentially an administrative and a non-judicial function, going by the provisions of Section 3(4) of the Code, must have been left in the jurisdiction of an Executive Magistrate.

4. Thelearned counsel for the petitioner prays that the petitioner may be given an opportunity to raise this contention before the Division Bench and persuade the Division Bench to reconsider the matter and refer the question to a larger Bench.

5. Having considered all the relevant circumstances, I am persuaded to agree that the matter deserves to be disposed of by a Division Bench.

6. The Registry shall place the matter before a Division Bench for necessary orders and disposal under Section 3 of the Kerala High Court Act."

2. Beforeconsidering 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 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.4276/20