IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 CRL.REV.PET.NO. 201 OF 2008() ------------------------------------------- CRA.428/2007 OF I ADDL.SESSIONS COURT, ERNAKULAM C.C. NO.400 OF 1999, JUDICIAL FIRST CLASS MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT ------------------------------------------------ P.K.SURENDRAN, S/O.KARUNAKARAN ACHARY, POKKAPARAMBIL (KARTHIKA), POLLATHAI P.O., S.L.PURAM, DIST.ALAPUZHA. BY ADV. SRI.K.REGHU KOTTAPPURAM SRI.M.MUKESH RESPONDENT(S): RESPONDENTS ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VINODINI, W/O.HARIDAS, ASWAS, MULANTHURUTHY VILLAGE, MULANTHURUTHY KARA, DIST. ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/07/2009, ALONG WITH CRRP NO. 209 OF 2008 AND CONNECTED CASES, THE THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P.NO.201 of 2008, CRL.R.P.NO.209 of 2008, CRL.R.P.NO.1169 of 2009 AND CRL.R.P.NO.1172 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of July, 2009 O R D E R -------------- These revisions are in challenge of separate orders passed by learned Judicial First Class Magistrate-I, Ernakulam under Section 452 of the Code of Criminal Procedure (for short, “the Code”) disposing of the gold ingots involved in the respective cases and directing its release to respondent No.2. Petitioner who was one of the prosecution witnesses in the cases claimed that the gold ingots belonged to him but that claim was not upheld by the learned magistrate. Petitioner preferred appeals before learned Additions Sessions Judge but in vain. Hence these revisions. 2. Case of the prosecution is that 4 accused persons in furtherance of their common intention committed lurking house trespass in the house of respondent No.2 in these revisions and theft of gold ornaments. Accused were arrested by the Circle Inspector of Police Piravom and it is stated that based on the information given by the accused gold ingots were discovered from the possession of petitioner. Separate mahazars were prepared by the Investigation CRL.R.P. Nos.201 & 209 of 2008 & CRL.RP. Nos.1169 & 1172 of 2009 -: 2 :- Officer. After investigation accused were charged for offences punishable under Secs.457 and 380 read with 34 of the Indian Penal Code (for short, “the IPC”). They were put on trial before the learned magistrate. Respondent No.2 in these revisions gave evidence regarding the alleged theft. Petitioner was examined in the respective cases to prove that he had allegedly purchased the gold ornaments from the accused, he had melted the same and converted it into ingots and later produced the same before the Investigation Officer. He however refused to support prosecution and claimed that those gold ingots belonged to him. It is also his case that the Circle Inspector had obtained signed blank papers from him and making use of that, relevant documents were prepared. Learned Assistant Public Prosecutor after obtaining permission from learned magistrate confronted petitioner with his previous statement and the contradictions in the statement were marked in evidence. Learned magistrate found that crucial witness in this case is the petitioner but he did not support the prosecution and acquitted the accused. It was directed that gold ingots will be given to respondent No.2 in these revisions. That order was challenged by petitioner in separate revisions in this Court. This Court found that proper remedy of petitioner was to appeal to the court to which ordinarily appeal lies CRL.R.P. Nos.201 & 209 of 2008 & CRL.RP. Nos.1169 & 1172 of 2009 -: 3 :- from conviction and sentence. Accordingly revisions were made over to learned sessions Judge concerned to covert the same as appeals and dispose of the same. Accordingly the matter came before learned Sessions Judge who after hearing both sides set aside the order releasing the gold ingots to respondent No.2 and remitted the matter to the learned magistrate to conduct further enquiry into the matter. Matter again came up before the learned magistrate. But neither side adduced evidence in support of their respective claims. Learned magistrate after referring to the case records including case diary and confession statements of accused concluded that respondent No.2 in these revisions are entitled to possession of the gold ingots and accordingly passed the impugned order. That order was challenged by petitioner in the Sessions Court. Learned Second Additional Sessions Judge confirmed the order. Hence these revisions. It is contended by learned counsel for petitioner that under Sec.452 of the Code what learned magistrate has to consider was only as to who was entitled to possession of gold ingots. In this case it is admitted that gold ingots were taken from the possession of petitioner. So far as title to movables is concerned, possession is prima facie evidence of such title and in the absence of any evidence of better claim, learned magistrate ought to have released the gold ingots to the CRL.R.P. Nos.201 & 209 of 2008 & CRL.RP. Nos.1169 & 1172 of 2009 -: 4 :- petitioner. Learned counsel placed reliance on the decisions in Krishna Pillai v. Public Prosecutor (1987 (2) KLT 366), Mary Mathew v. State of Kerala, (2002 (1) KLT 99), Kunhaman v. State of Kerala (2002 (3) KLT SN 33), Puthiyedathu Kvu DTC v. Manoharan (2002(2) KLT 167) and Mubarak v. State of Kerala (2003 (1) KLT 25). Learned counsel for respondent No.2 per contra contended that possession referred to in Sec.452 of the Code must be lawful in that petitioner ought to have come to possession of the gold ingots in a lawful manner and if otherwise, it cannot be said that he is entitled to possession of gold ingots. It is also the contention of learned counsel that in the enquiry under Sec.452 of the Code it is open to the learned magistrate notwithstanding the bar under Sec.162 of that Code or Sec.25 of the Evidence Act to refer to the materials that have been produced by the prosecution and decide who is entitled to possession of the article. 3. I have gone through the decisions relied on by learned counsel for petitioner. Those decisions have no application to the facts of these cases since those decisions refer to judicial confession or extraordinary judicial confession in trial of cases. This Court in CRL.R.P. Nos.201 & 209 of 2008 & CRL.RP. Nos.1169 & 1172 of 2009 -: 5 :- Krishna Pillai’s case and a Division Bench of this Court in Govindaraj v. State of Kerala (1987 (2) KLT 1017) has taken the view that in the matter of enquiry under Sec.452 of the Code it is within the power of court to refer to the entire records before it including statements under Sec.162 of the Code and confession of accused. Therefore notwithstanding that those records are not specifically exhibited in evidence in the enquiry in these cases it was within the power of the magistrate to have gone into those records to decide the controversy. 4. It is true that under Sec.452 of the Code on conclusion of trial property has to be returned to the person entitled to possession thereof. The word “possession” is qualified by the word “entitled” which means that the person from whom property is seized should have an 'entitlement' of his own for possession. That entitlement can only be taken as only lawful entitlement. In short if it is by unlawful means that the person concerned has come in possession of the material object he cannot resort to Sec.452 of the Code and claim that the material object is to be returned to him which would only mean legalising or regularising the unlawful manner in which the said person has come into possession of the material object. I shall look CRL.R.P. Nos.201 & 209 of 2008 & CRL.RP. Nos.1169 & 1172 of 2009 -: 6 :- into the issue based on the above legal proposition. 5. I have gone through the records in the case and find that Investigation Officer seized the gold ingots in question from the possession of petitioner on the strength of information given by the respective accused. Respective mahazars for the seizure would say that respective accused have given the statement to the Investigation Officer that he along with his companion accused had stealthily entered the house of respondent No.2 in these revisions and committed theft of gold ornaments. It is further stated that such accused had sold the gold ornaments to the petitioner. Statement of petitioner recorded by the Investigation Officer is that he had purchased those gold ornaments from the respective accused (whom he identified in the course of interrogation) and had converted the same into gold ingots. 6. It is true that petitioner has a case that making use of signed blank papers the Investigation Officer had fabricated documents against him in the matter. But mere saying so as a witness in the trial court is not sufficient. Petitioner had ample opportunity and it is fairly conceded also that he did not adduce evidence in support of his claim for release of the gold ingots. After the matter was remanded to the learned magistrate petitioner had CRL.R.P. Nos.201 & 209 of 2008 & CRL.RP. Nos.1169 & 1172 of 2009 -: 7 :- occasion to give evidence in his side and if necessary to summon the Investigation Officer and examine him with reference to the case pleaded by him. That has not been done. Therefore what is available is only the suggestion of petitioner that records were fabricated by the Investigation Officer which is not put in the form of evidence. As against that, records produced by the prosecution would show that it was by unlawful means that petitioner had come into possession of the gold ingots. If that be so, his possession at the time of seizure was unlawful and that cannot entitle him to possession of the gold ingots. Viewed in that line I have no reason to interfere with the orders under challenge. There is no merit in these revisions. Revisions fail and are dismissed. THOMAS P.JOSEPH, JUDGE. vsv