IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 Crl.MC.No. 5083 of 2010() ------------------------------ CMP.3204/2010 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA CRIME NO.1551/2010 OF ANGAMALY POLICE STATION, ERNAKLAM .................... PETITIONER(S): PETITIONER/DEFACTO COMPLAINANT ---------------------------------------------------------------- ARAVINDHAKSHAN,AGED 53, S/O.KELU, KOVATTU HOUSE, KIDANGOOR, VENGOOR,ANGAMALY. BY ADV. SRI.P.SHAIJAN JOSEPH RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------------------------- KERALA STATE,REP.BY CIRCLE INSPECTOR OF POLICE, ANGAMALY POLICE STATION, ANGAMALY, REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.5083 of 2010 --------------------------------------- Dated this 21st day of January, 2011 ORDER Petitioner is the de facto complainant in Crime No.1551 of 2010 of Angamaly Police Station for offences punishable under Sec.380 of the Penal Code. He alleged that gold ornaments were stolen from his jewellery shop at Angamaly. Later, police recovered the gold ornaments from a financier where the same were pledged and produced the same in the court of learned Judicial First Class Magistrate-II, Aluva. Thereon petitioner filed C.M.P.No.3204 of 2010 under Sec.451 of the Code of Criminal Procedure (for short, "the Cr.P.C") for release of those gold ornaments. Learned Magistrate has dismissed that application observing that the gold ornaments in question have certain identifying features and that if it is given to the petitioner, identification will loose its credibility. That order is under challenge. Learned counsel submits that learned Magistrate has not followed decision of the Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujarat (AIR 2003 SC 638) in the matter of disposal of valuable articles including gold ornaments. It is pointed out by learned Public Prosecutor that as per the order under challenge, gold ornaments were recovered from a Crl.M.C.No.5083 of 2010 -: 2 :- private financier where it was pledged but, notice of C.M.P.No.3204 of 2010 was not given to that financier. In reply learned counsel submits that the financier has never made any claim over the gold ornaments. 2. Whether the financier has a claim over the gold ornaments or not, is a different matter. But, interim custody of the gold ornaments was sought for, it was necessary that the financier from whom the gold ornaments were recovered was made a party in C.M.P.No.3204 of 2010 and that financier was given notice of the said petition. That has not happened in this case. Hence, the application for that reason cannot be sustained. But I am inclined to give an opportunity to the petitioner to implead the financier as additional respondent in C.M.P.No.3204 of 2010 . Resultantly Annexure-A1, order dated December 15, 2010 in C.M.P.No.3204 of 2010 of learned Judicial First Class Magistrate-II, Aluva is set aside and C.M.P.No.3204 of 2010 is remitted to the said court for fresh consideration and decision in the light of the guidelines prescribed in Sunderbhai Ambalal Desai Vs. State of Gujarat (supra) after giving notice to the financier as well. (THOMAS P JOSEPH, JUDGE) Sbna/-