IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 Crl.Rev.Pet.No. 4141 of 2008() ------------------------------ CMP.7288/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA (CRIME NO.59/2008 OF POOYAPPALLY POLICE STATION) REVN. PETITIONER(S): PETITIONER/PETITIONER IN THE CMP ----------------------------------------------------- VARUN GOPAL, S/O.VENUGOPAL, ARUN NIVAS, PORENDUM MURI, CHADAYAMANGALAM VILLAGE. BY ADV. SRI.R.ARUN RAJ RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, POOYAPPALLY POLICE STATION (CRIME NO.459/08) REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 4141 OF 2008 =========================== Dated this the 27th day of January,2009 ORDER Revision petitioner is challenging the order passed by Judicial First Class Magistrate II, Kottarakkara dismissing C.M.P.7288/2008 filed by him under section 451 of the Code of Criminal Procedure for interim custody of autorickshaw KL-2N 6145 seized in Crime No.459/2008 of Pooyappally Police Station and produced before the court. Learned Magistrate dismissed the petition as the application was opposed by the Assistant Public Prosecutor on the ground that the stolen articles were transported in the autorikshaw and the autorikshaw is to be shown and identified in the course of investigation and therefore it cannot be released to the revision petitioner. 2. Learned counsel appearing for the CRRP 4141/2008 2 revision petitioner and the learned Public Prosecutor were heard. 3. Learned counsel submitted that there is no necessity to retain the autorikshaw so as to cause damage to the vehicle by exposing to sun and rain and revision petitioner is prepared to abide by any condition and therefore the order is to be quashed and interim custody is to be granted. Learned Public Prosecutor submitted that out of the four accused involved accused 1 to 3 are yet to be apprehended and for proper investigation of the case, custody of the vehicle is necessary and learned Magistrate rightly dismissed the petition. 4. The prosecution case is that on 20.9.2008 at about 3 a.m the accused in Crime No.459/2008 break opened the room and committed theft of 200 rubber sheets and 85 kg. of latex of rubber and thereby caused a loss of Rs.19,000/- to the de facto complainant and after the theft the stolen articles were transported in autorikshaw KL-2N 6145 which CRRP 4141/2008 3 was seized by the police and produced before the Magistrate. Even if it is taken that the autorikshaw was used for transporting the stolen articles, I do not find it necessary to retain the custody of the vehicle so as to cause damage to the vehicle. If the case of the prosecution is that the vehicle is to be shown to the witnesses and is to be identified , there could be a direction to the revision petitioner to produce the vehicle to enable the Investigating Officer to get it identified. 5. In such circumstance, the order passed by the Magistrate in CMP 7288/2008 dated 29.10.2008 is set aside. The Magistrate is directed to give interim custody of the vehicle to the revision petitioner who is the R.C owner of the vehicle on the following conditions. (1) Revision petitioner shall execute a bond for Rs.30,000/- with two solvent sureties for the like sum to the satisfaction of the Judicial First Class Magistrate CRRP 4141/2008 4 Kottarakkara undertaking to produce the vehicle as and when directed. (2) He shall not transfer the vehicle without the permission of the Magistrate. (3) He shall not use the vehicle for any illegal purpose including transportation of stolen articles. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006