IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 458 of 2008()
1. REGHUNATH, S/O.SANKARAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/09/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.No.458,460 & 463
OF 2008
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Dated this the 7th day of September,2009
ORDER
In Crime No.655/2007 of Chengamanad Police Station
registered for the offence under sections 397 and 365
of Indian Penal Code gold ornaments allegedly involved
in the case was seized and produced before the court.
So also articles including television set, DVD, Washing
Machine, Furniture and Home theatre were seized from
the house of fifth accused. Petitioner is the de facto
complainant. Case of the petitioner is that 3.567 kilo
grams of gold which was being transported in Ambassador
car bearing reg. No.KL.01-AL-5356 on 11.8.2007 at about
8.25 a.m, along the National Highway was stopped by a
Qualis Jeep by five identifiable persons and the gold
ornaments were forcibly taken away and petitioner
thereby lost gold worth Rs.31.60,800/-. Petitioner
filed Crl.M.P.220/2008 under section 451 of Code of
Criminal Procedure for interim custody of the articles
seized including the articles seized from the house of
the fifth accused, contending that those articles were
purchased using the funds obtained by selling the gold
Crl.M..C.458,460 & 463 of 2008 2
belonging to the petitioner. It is also contended that the
gold ornaments seized and produced were identified by the
petitioner as part of the stolen articles.
2. Under Annexure C order dated 21.01.2008 (in
Crl.M.C.458/2008) learned Magistrate dismissed the petition
holding that in view of the order passed in
Crl.M.P.160/2008 whereunder interim custody was granted
petitioner cannot be granted, interim custody.
Crl.M.C.458/2008 is filed challenging that order.
3. Crl.M.C.463/2008 is filed challenging Annexure C
order passed by the Judicial First Class Magistrate I,
Aluva on 16.1.2008 in C.M.P.160/2008 filed by the fifth
accused the first respondent herein, whereunder interim
custody of the gold ornaments were given to the first
respondent.
4. Crl.M.C.460/2008 is filed challenging Annexure C
order therein dated 22.12.2007 in C.M.P.4666/2007 filed by
the first respondent the mother of the fifth accused.
Under Annexure C order first respondent was granted interim
custody of the articles seized from the house, though the
learned Magistrate found that the evidence shows that the
household items were purchased subsequent to the commission
of the offence and the prosecution case is that the said
articles were purchased out of the funds obtained by sale
Crl.M..C.458,460 & 463 of 2008 3
of the stolen gold.
5. Though notice was served on the respective first
respondent in Crl.M.C.460/2008 and 463/2008, the mother of
the fifth accused, and the fifth accused, they did not
appear.
6. Learned counsel appearing for the petitioner and
the learned Public Prosecutor were heard.
7. Annexure C order in Crl.M.C.463/2008 shows that the
gold ornaments seized as the stolen articles were granted
on interim custody to the fifth accused for the sole reason
that nobody else has claimed the article. Case of the
petitioner is that he was not informed about the petitions
filed by either the fifth accused or his mother and in the
application filed by the petitioner before the learned
Magistrate, prosecution admitted that interim custody
could be given to the petitioner. It is therefore argued
that the orders granting interim custody to the fifth
accused and the mother are to be quashed.
8. Learned Public Prosecutor submitted that the
learned Magistrate should not have granted interim custody
of the gold ornaments to the accused. In any case as claim
of the petitioner was not considered, learned Magistrate
may be directed to consider all the petitions together.
9. While granting interim custody of the gold
Crl.M..C.458,460 & 463 of 2008 4
ornaments, seized and produced before the court, to one of
the accused, learned Magistrate has stated that it is
being given as no other person has claimed interim
custody. Learned Magistrate omitted to take note of the
fact that the gold ornaments produced before the court were
part of the stolen articles claimed to be that of the
petitioner. In such circumstance, before granting interim
custody and that too, for the sole reason that no other
claimant raised any claim, learned Magistrate should have
given notice to the de facto complainant. Moreover,
granting interim custody of gold ornaments to an accused
for the reason that nobody else raised any claim for
interim custody is not at all justifiable. Therefore
Annexure C order passed in C.M.P. 160/2008 can only be
quashed.
10. Similarly C.M.P.220/2008 was dismissed for the sole
reason that interim custody has already been ordered in
C.M.P.160/2008. When the order in C.M.P.160/2008 is
quashed, necessarily C.M.P.220/2008 has to be reconsidered.
11. Though learned Magistrate granted interim custody
of the articles seized from the house of the fifth accused
to his mother on conditions, the de facto complainant was
not heard before granting interim custody. When it is the
case of the prosecution and the de facto complainant that
Crl.M..C.458,460 & 463 of 2008 5
those articles were purchased using the funds realised by
the sale of the gold ornaments stolen from the petitioner,
learned Magistrate should have given notice to the
petitioner in C.M.P. 4666/2007 also. As it is not done,
Annexure C order in Crl.M.C.460/2008 can only be quashed.
Petitions are allowed. The orders in C.M.P.4666/2007,
C.M.P.160/2008 and C.M.P. 220/2008 on the file of Judicial
First Class Magistrate Court-I, Aluva in Crime No.655/2007
of Chengamanad Police Station are quashed. Learned
Magistrate is directed to reconsider the applications and
pass appropriate orders in accordance with law after
hearing the parties including the petitioner.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006