IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 Crl.MC.No. 525 of 2010() ------------------------ CC.62/2001 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER: --------------- AJITH KUMAR, S/O. KARUNAKARAN, 'ASWATHY' VENNIYOOR DESOM VENGANNOOR VILLAGE, THIRUVANANTHAPURAM BY ADV. SRI.RAJESH P.NAIR SRI.ROBIN JOSE RESPONDENT: : --------------- THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.M.C. No. 525 OF 2010 -------------------------- Dated this the 17th day of March, 2010 O R D E R 63.500 gms of gold ingots were produced before the Additional Chief Judicial Magistrate, Thiruvananthapuram in C.C. No.62/2001, now pending as L.P. No.153/2007. Petitioner/defacto complainant filed CMP No.2707/2008 under Section 451 of Code of Criminal Procedure for interim custody of the gold ingots contending that gold ingots produced in the court was made by melting the gold ornaments stolen from his house on 23.10.2000 and hence he is entitled to interim custody of the gold ingots. Leaned Additional Chief Judicial Magistrate, by Annexure-C order, dismissed the petition. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-C order and to grant interim custody. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel submitted that even though the case has been pending for trial from 2001 onwards, the accused did not appear and the case now stands removed to the long pending Crl.M.C.No.525/2010 2 register and there is no prospect of disposing the case in the near future. It is the case of the police that those gold ingots were recovered from a Jeweler at Nagarkovil and it was recovered based on the confession statement of the accused and the confession statement establishes that the gold ingots was prepared by melting the gold ornaments stolen from the house of the petitioner and in such circumstances, even when the Jeweler has not claimed interim custody, the learned Magistrate was not justified in dismissing the petition. 4. Learned Public Prosecutor also admitted that the Jeweler has not so far claimed interim custody of the gold ingots. 5. For considering the question whether custody of the gold ingots produced in the court, as the stolen article is to be released to the defacto complainant, Magistrate is entitled to rely on the statements recorded by police, during investigation. If on those materials, the Magistrate can satisfy that the gold ingots produced before the court were obtained by melting gold ornaments stolen from the house of the defacto complainant, Magistrate has to grant interim custody to the petitioner. The learned Magistrate cannot Crl.M.C.No.525/2010 3 refuse to grant interim custody on the ground that the question whether the gold ingots were in fact prepared by melting the stolen ornaments of the petitioner can be decided only at the time of trial. In such circumstance, Annexure-C order is quashed. Additional Chief Judicial Magistrate is directed to reconsider CMP No.2707/2008. If on the statements or record available in the case diary, the Magistrate can find that gold ingots were the gold ornaments stolen from the house of the petitioner and melted by the Jeweler, Magistrate is to grant interim custody to the petitioner on sufficient conditions, expeditiously. Petition is disposed. M.SASIDHARAN NAMBIAR, (JUDGE ) vps Crl.M.C.No.525/2010 4 Crl.M.C.No.525/2010 5