IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 20TH DAY OF OCTOBER 2009/28TH ASWINA, 1931 Crl.MC.No. 2902 of 2007 ( ) --------------------------- CMP.3942/2007 of J.M.F.C.,KUNNAMANGALAM PETITIONER(S): ------------- SUJITH A.K., S/O.SUJANAPAL, AGED 27 YEARS, KOOMULLAMKUZHIYIL HOUSE KUNNAMANGALAM P.O., KOZHIKODE DIST. BY ADV. SRI.K.RAMAKUMAR (SR.) COMPLAINANT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-31. 2. MILMA, REPRESENTED BY ITS DAIRY MANAGER, BABU VARGHESE, PERINGOLAM. BY ADV. SRI.K.ANAND (A.201) BY ADV. SMT.LATHA KRISHNAN BY ADV. PUBLIC PROSECUTOR SRI P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-10-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. -------------------------------------------------- Crl.M.C. No. 2902 of 2007 -------------------------------------------------- Dated this the 20th day of October, 2009 ORDER Petition is filed to quash Annexure-C order passed under Section 451 Cr.P.C. 2. Petitioner is a contractor who was supplying milk for MILMA during the period 2006-08. For the purpose of supply of milk, MILMA fitted “PUF” in the vehicle belonging to the accused. But, the petitioner stopped supplying milk with effect from 25.7.2007 and he did not return 'PUF' to MILMA. He, therefore, allegedly committed breach of trust by retaining PUF and not returning the same to MILMA in spite of repeated demands. 3. A crime was registered against petitioner on the basis of complaint given by MILMA alleging offence under Section 406 of IPC. The PUF was seized by the police. The de facto complainant as well as the accused filed petitions for interim custody of PUF under Section 451 Cr.P.C. Both the petitions were heard jointly and disposed of by Annexure-C order. As per the order, learned Magistrate released PUF to the interim custody of de facto complainant (respondent herein) on execution of bond etc. The said order is challenged in this petition. [Crl.M.C.No.2902/2007] 2 4. Heard both sides. Learned counsel for petitioner argued that the impugned order is per se illegal for various reasons. No offence is attracted in this case since there is only mere breach of contract between the de facto complainant and petitioner which does not give rise to any offence. Learned counsel for petitioner also submitted that an article can be seized under Section 102 of Cr.P.C., only if there is suspicion of having committed an offence of theft or some other offence. The police has no power to seize the article if it is not involved in any offence. Therefore, registration of crime itself is illegal and consequently, the seizure of article also is illegal. The court below committed an illegality in releasing the article to the respondent without considering any of the relevant facts which ought to have been considered, it is argued. The seized article must go to the person from whose possession it is seized, it is argued. 5. Learned counsel for respondent argued that respondent is the owner of the article “PUF” and there is no illegality in releasing to respondent. It is also submitted that even if there is a breach of contract, going by petitioner's case itself, he will not have any right to have possession of the PUF after the expiry of the term of contract on 30.8.2008. Learned counsel for [Crl.M.C.No.2902/2007] 3 respondent also argued that even if the article is ordered to be given to petitioner he cannot use the same and the article will only be spoiled. 6. Learned Public Prosecutor, however, pointed out that Section 451 Cr.P.C. cannot be invoked in this case, since the article was not produced before court. It was seized during investigation but it was not produced before court, as seen from the order itself. So, in a case where a property is seized during investigation and such seizure is only reported without producing the property before court the Magistrate can invoke only the provision under Section 457 and not under Section 451 Cr.P.C. 7. Heard both sides. Perused the records. I find from the impugned order itself that property was not produced before court, as pointed out by learned Public Prosecutor. The property was seized by the police on registration of the crime against petitioner and hence the court ought to have invoked Section 457 Cr.P.C. and not Section 451 of Cr.P.C. A reading of Sections 451 and 457 Cr.P.C. shows that there is striking difference between the language used in Sections 451 and 457 Cr.P.C. 8. While under Section 451 the court is concerned only about “proper” custody of the property seized, under Section 457, the [Crl.M.C.No.2902/2007] 4 court can make an order for delivery of such property to the person “entitled to the possession” thereof. That means, in cases in which Section 457 is involved, the court can deliver property only to the person “entitled to possession” of property. The question is not whether person will be a proper custodian of the article or not. 9. According to petitioner, he is the person who is “entitled to possession “ of PUF, as on the date of seizure as well as on the date of Annexure-C order. Admittedly, respondent allowed petitioner to use the property and petitioner had only an obligation to pay rent. Therefore, he is entitled to possession of the same. Even if respondent is the owner, by virtue of the agreement between the petitioner and respondent, petitioner is entitled to be in possession of 'PUF'. 10. It was also argued that the court below did not consider whether the offence under Section 406 IPC is involved or not and whether on that count, the seizure itself was legal. Those are important aspects which are to be considered while disposing of the property under Section 457 Cr.P.C., it is argued. It is true that it is not mere ownership of the property which is relevant in deciding a petition under Section 457 Cr.P.C. but property can be [Crl.M.C.No.2902/2007] 5 delivered to any other person if he is “entitled to be in possession” of the same irrespective of the ownership under Section 457 Cr.P.C. 11. Even if a person is the owner of a property and if he makes a complaint so as to deprive the right of another person who is entitled to the “custody” of property and influences the police and gets the property seized it may not be proper for the court to grant custody to such person, it is argued. If the property is released to a person who has deliberately driven a person to court knowing fully well that such person has not even committed the offence and mala fide used the police for seizing the property deprived him from being in to possession of property to which, he is entitled to, it will result in gross injustice, it is argued. 12. The custody of property should be refused to such person who has applied dubious means to achieve his goal through police and court, it is strongly argued. The court must be slow to release property to such person lest, it will encourage a person to illegally procure possession of property, it is strongly argued. On going through Section 451 or 457 Cr.P.C., it is clear that the power under Section 451 is discretionary in nature. [Crl.M.C.No.2902/2007] 6 Hence, I agree that if there is any dishonest attempt to procure possession and custody of any property, through police or court, the court has to take into consideration such facts also, while taking decision in respect of delivery of property. In this case as the learned counsel for the petitioner would argue that the trial court failed to consider a material aspect in this case, i.e., petitioner's entitlement to be in possession of the property. Even though MILMA is the owner of the property, by virtue of the arrangement made between the petitioner and the respondent, the MILMA may or may not get any right to be in possession of the property. The trial court ought to have considered the contention whether petitioner is entitled to be in possession of PUF, in spite of the fact that MILMA is the owner, as contended by petitioner. 13. I am satisfied that this is a case in which the most relevant factor has been totally ignored by the trial court, while considering an application for custody of the property. It appears that there was some transaction between MILMA and the petitioner. The petitioner is put in possession of the property under certain terms and conditions. The case of the petitioner is that the terms of the agreement are violated by MILMA and because of such violation, the petitioner has suffered a great loss [Crl.M.C.No.2902/2007] 7 and he was forced to file a civil case against MILMA. In spite of the violation of the agreement and the loss caused to the petitioner, MILMA is given the custody for which it is not entitled to, on the facts of the case, it is submitted. 14. I am satisfied that this is a case where the trial court ought to have looked into this aspect and in the absence of consideration of this relevant factor, injustice is caused to the petitioner. This is a case were the court ought to have considered the contention raised by the petitioner and taken a decision. 15. Both sides would admit that a criminal case is registered against the respondent on a complaint filed by the petitioner and a suit is also filed by petitioner against MILMA for damages. Various disputes arise in respect of an alleged breach of contract etc. Therefore, it is all the more essential that the Court decides entitlement of petitioner to the property before passing an order under Section 457 Cr.P.C. In the absence of doing it, it is likely that the impugned order may affect the rights and liabilities of parties since, the order passed by the criminal court may have some bearing on the rights and liabilities of parties. 16. In the above circumstances, I hold that to secure ends of justice, the order under challenge is to be set aside and the [Crl.M.C.No.2902/2007] 8 case be remanded for fresh consideration and disposal. In the result, the following order is passed: 1. The order under challenge is set aside. 2. The matter is remanded to the trial court for fresh consideration and disposal, in accordance with law, in the light of the observations made in this order. 3. An order shall be passed within one month of the date of receipt of a copy of this order. Petition is allowed. Sd/- K. HEMA, JUDGE. krs.