IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 1230 of 2007()
1. SAMU,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.J.JAYAKUMAR
For Respondent :SRI.M.DINESH
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/06/2007
O R D E R
V.RAMKUMAR, J.
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Crl.R.P.No. 1230/2007
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Dated this 18th day of June, 2007
O R D E R
In this revision filed under Section 397 read
with Section 401 Cr.P.C, the petitioner, who was accused
in Crime No.96/2006 of Anchal police station for an offence
punishable under Section 511 of Section 420 IPC,
challenges the orders passed by the trial Court as well as
the lower Appellate Court refusing the revision petitioner’s
application filed under Section 452 Cr.P.C seeking
permanent custody in respect of two idols – one of Lord
Dharmasastha made in Panchaloham and another of Lord
Vishnu.
2. Assailing the impugned orders, Adv. Sri.
Jayakumar, the learned counsel appearing for the revision
petitioner, made the following submissions before me:-
The revision petitioner had agreed to purchase the
idol of Lord Dharmasastha on 10.1.2005 from one Sobhana
alias sobha for a total consideration of Rupees Eleven
Lakhs out of which Rupees Five Lakhs was paid in
advance. The idol was handed over to the revision
petitioner, who had undertaken to pay the balance amount
Crl.R.P.1230/2007
2
of Rupees Six Lakhs as and when the idol was sold by
him. The said idol as well as the idol of Lord Vishnu
were, thereafter, seized by the police on 14.2.2006 from
Vedarpacha house at Cheepvayal where the revision
petitioner was residing on rent. Both the idols were
produced before the J.F.C.M, Anchal, who ordered the
same to be kept in safe custody in the Sub Treasury,
Anchal. The revision petitioner filed Crl.M.C
No.1068/2006 before this Court under Section 482
Cr.P.C seeking to quash the F.I.R. As per the order
dated 31.5.2006, this Court quashed the F.I.R. If so, the
properties which were seized from the custody of the
revision petitioner were liable to be returned to him
under Section 452 Cr.P.C. The revision petitioner,
therefore, filed C.M.P.No.4705/2006 before the J.F.C.M,
Anchal under Section 452 Cr.P.C. The said petition has
been dismissed by that Court. The said order has been
confirmed in appeal by the lower appellate Court. Going
by the decision in N.Madhavan v. State of Kerala
(AIR 1979 SC 1829), in a case where after an
enquiry or trial, the accused is discharged or acquitted,
Crl.R.P.1230/2007
3
the Court should normally restore the property to the
person from whose custody it was taken and a departure
from this rule of practice should not be lightly made
especially when there is no dispute or doubt regarding
the question as to the person from whose custody the
property was seized. The petitioner also relies on
Malabar Cashewnuts & Allied products v. State of
Kerala (1982 KLT 532), where, in the event of any
rival claim of title, the proper course would be for the
disputing party to get their title established before a
Civil Court, before the Criminal Court can be requested
to pass an order under Section 452 Cr.P.C. Hence, the
Courts below were not justified in rejecting the claim of
the revision petitioner. In any view of the matter, since
Sobhana has no claim over the idol of Lord Vishnu, the
Courts below ought to have given custody of the same to
the revision petitioner.
3. Adv. Sri. Dinesh, who has filed Crl.M.A.No.5911/2007 seeking the impleadment on behalf of one Sobhana alias Sobha in this revision,
made the following submissions before me in support of
Crl.R.P.1230/2007
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his application for impleading:-
The idol of Lord Dharmasastha belonged to the
father of the said Sobhana and it was taken by the
revision petitioner for the purpose of shooting a
cinematographic film and Sobhana had given him a
Power of Attorney to move a petition under Section 452
Cr.P.C. But the revision petitioner acted against the
interests of Sobhana and that is the reason why she has
sought her intervention in this revision.
4. I find myself unable to accept both the above
contentions. The only point which arises for
consideration in this revision is as to whether the two
idols were seized from the physical custody of the
revision petitioner so as to entitle him to restoration of
the custody of the same, consequent on the termination
of the proceedings before the Court. Crime No. 96/2006
of Anchal police station was registered at the instance of
one Bhargavan Pillai. The allegation was that the
revision petitioner, who was the accused in the said
crime, had attempted to commit an offence punishable
under Section 420 IPC. On 14.2.2006 the police seized
Crl.R.P.1230/2007
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both the idols – one of Lord Dharmasastha and other of
Lord Vishnu from one Vedarpacha House at Cheepvayal.
The revision petitioner has not been able to prove before
the Courts below that the said house either belongs to
him or was in his occupation as a tenant. Admittedly, the
revision petitioner was not present when the seizure of
the idols was made. No doubt, in Crl.M.C.1068/2006
filed by the revision petitioner for quashing the F.I.R
registered against him, this Court as per the order dated
31.5.2006, allowed the revision and quashed the F.I.R.
Consequently, the possession of two idols which were
seized in the case will have to be restored to the person
from whom they were seized. Both the Courts below
have concurrently held that there was no evidence to
show that two idols were seized from the possession of
the revision petitioner. Hence, there is no question of
applying the dictum laid down in AIR 1979 SC 1829.
5. The request of Sobhana for impleading her in
this revision also cannot be entertained. Admittedl, a
similar request made by her before the lower appellate
Court was rejected and she has not chosen to assail the
Crl.R.P.1230/2007
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said order. If Sobhana is aggrieved by any order
passed by the Criminal Court prejudicially affecting her
rights, it is open to her to assail the said orders. That
cannot be done by impleading herself in a revision filed
by somebody else.
6. The Courts below cannot be held to have
committed any illegality, irregularity or impropriety in
rejecting the claim by the revision petitioner for custody
of the idols in question in a claim made under Section
452 Cr.P.C. Apart from the fact that there was no
evidence of actual seizure from the physical custody of
the revision petitioner, there was also a rival claim over
the same. Hence, if the revision petitioner wants to have
the custody of the idols of Lord Dharmasastha and Lord
Vishnu, the proper course is to approach the Civil Court
and get his rights declared and, thereafter, move the
Criminal Court for custody.
7. It is true that Sobhana had no claim over the
idol of Lord Vishnu. But that does not mean that the
revision petitioner is entitled to custody of the said idol
as well, since the very same reasons which apply in
Crl.R.P.1230/2007
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respect of the idol of Lord Dharmasastha equally apply
in the case of the idol of Lord Vishnu as well. There is
no evidence of actual seizure of the said idol from the
physical custody of the revision petitioner, so as to
enable him to move the Criminal Court under Section
452 Cr.P.C. In respect of said idol also, the remedy of
the revision petitioner is to move the Civil Court.
This revision, which is devoid of any merit, is
accordingly dismissed. Crl.M.A No.5911/2007 is also
dismissed.
V.RAMKUMAR,
JUDGE
mrcs