IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH, AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND NINE Present: THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.5545 of 2009 Between: Md. Saifuddin Farooq @ Farooq, S/o. Dr.M.A.Ahmed, Aged 42 years, Occ:Private School Secretary, Presently residing at Plot No.194, Alhasnath Colony, Tolichowki, Hyderabad …Petitioner / Owner of Property AND The State of A.P., rep by its. Public Prosecutor, High Court, Hyderabad. And another. …Respondents The Court made the following: THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.5545 OF 2009 ORDER: Heard Sri Vinod Kumar Deshpande, learned counsel, representing Sri M.Rajender Reddy, learened counsel for petitioner and Sri A.Ramesh, learned counsel, representing learned Public Prosecutor for the first respondent. Second respondent is stated to have been served with notice of the petition personally. But, none entered appearance on behalf of the second respondent. The petitioner claims to be the absolute owner and possessor of Flat Nos.601, 602 at Shaheen Heights Apartments situated at Mallepalli, Hyderabad, by virtue of General Power of Attorney (GPA). The flats were seized from the possession of the petitioner and his family members under a Panchanama, and when the petitioner approached the XVI Additional Chief Metropolitan Magistrate, Hyderabad in Crl.M.P.No.1096 of 2009 for interim custody of the flats, the same was rejected. The ground on which the request was so rejected was that returning the keys would amount to permitting the petitioner/accused to take back the physical possession of the disputed flats. The learned Magistrate felt that as the very offence for which the accused is prosecuted is criminal trespass, it is not desirable to entrust the interim custody of the keys of the flats, till the ownership is decided by the Civil Court. The learned Magistrate, therefore, felt that the accused has to approach the Civil Court for appropriate reliefs and dismissed the petition. The trial Court again dismissed the Crl.M.P.No.867 of 2009 also, filed for the same relief, on the ground that the earlier dismissal of the Crl.M.P.No.1096 of 2009 has to be challenged, but a fresh petition cannot be filed. The admitted fact is that petitioner and his family were in possession by the time the possession of the flats was taken under a Panchanama, and the flats were locked and keys were kept with the police. Police deposited the keys before the Court and though it is true that the case is on the allegation of committal of criminal trespass by the petitioner, what is requested as of now by the petitioner, is only interim custody of the property under Section 451 of the Code of Criminal Procedure, and not an ultimate property order at the end of the criminal proceedings. The rights of the de-facto complainant or the petitioner will always be subject to the determination of the civil rights of the parties by the competent Civil Court in appropriate proceedings concerning the flats in the petitioner’s possession, but, till then, the flats need not be left to disuse and consequential deterioration in value. As the state of affairs as on the date of the police keeping the flats under their lock and key was possession of the petitioner and his family, entrustment of the keys to the petitioner will be in tune with the provisions of the Section 451 of Code of Criminal Procedure. When the second respondent has not appeared in this Criminal Petition in spite of personal service of notice, the exercise of judicial discretion in that manner cannot be open to question and of course, subject to any further or final orders that may be passed in the criminal proceedings in accordance with law. As of now, the interim custody of the flats should be reverted back to the petitioner and accordingly, the keys of the flats should be returned to the petitioner by way of interim custody. Therefore, the XVI Additional Chief Metropolitan Magistrate, Hyderabad is directed to handover the keys of flat Nos.601, 602 and 205 in Shaheen Heights Apartments situated at Mallepalli, Hyderabad to the petitioner under proper acknowledgement and on proper identification and on execution of a personal bond for Rs.10,00,000/- (Rupees ten lakhs only) with two sureties for a like sum to the satisfaction of the XVI Additional Chief Metropolitan Magistrate, Hyderabad with an undertaking to deliver the possession of the flats and handover the keys of the flats to the Court whenever directed and further undertaking not to alienate or encumber the said flats in any manner and to maintain them in the same physical state without any change in the physical features till the finality of the criminal proceedings. The Criminal Petition is ordered accordingly. ___​_________________ (G. BHAVANI PRASAD, J) September 24, 2009 Bvv