IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 Crl.MC.No. 916 of 2011() ----------------------------------- CC.35/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NORTH PARAVUR CRIME NO.17/1993 OF BINANIPURAM POLICE STATION, ERNAKULAM DISTRICT .................... PETITIONER/ACCUSED: ----------------------------------- A.V. PAPPACHAN, AGED 72 YEARS, S/O.VAREED, AMBATT VEEDU, CONVENT ROAD, N. PARAVUR. BY ADV. SRI.S.RAJEEV RESPONDENTS/COMPLAINANT: ------------------------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.17/1993 OF BINANIPURAM POLICE STATION, ERNAKULAM DISTRICT AND CC NO.35/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NORTH PARAVUR. 2. SAJEEV, S/O.SUBRAMANIAN, AAVANAKKUMPARAMBIL VEED, KODUVAZHANGA, NEERIKKODE P.O., ALANGAD-683 511. R1 BY PUBLIC PROSECUTOR MR.K.J. MOHAMMED ANZAR. R2 BY ADV. SRI.SANTHOSH SUBRAMANIAN, SRI.E.A.THANKAPPAN, SRI.SHERRY J. THOMAS, SRI.S.SREEKUMAR(NORTH PARAVUR). THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.916 of 2011 ==================================== Dated this the 26th day of May, 2011 O R D E R Petitioner is aggrieved by Annexure-III, order dated December 09, 2010 in Crl. M.C. Nos.4490 and 5594 of 2007 in C.C. No.35 of 1999 of the court of learned Judicial First Class Magistrate, North Paravur. Subject matter of the dispute is a gold thali chain weighing about 5.40 sovereigns which the second respondent claimed, belonged to his wife and which is the subject matter of theft. The Binanipuram police registered Crime No.17 of 1993 for offences punishable under Sections 457 and 380 of the Indian Penal Code. As per prosecution case that gold chain was recovered from petitioner under Section 27 of the Evidence Act (for short, “the Act”) obviously on the confession statement given by the accused. Learned Magistrate gave interim custody of the gold chain to the second respondent, allowed Crl.M.P. No.5594 of 2007 and dismissed Crl. M.P. No.4490 of 2007. Hence this petition. Learned counsel contends that there was no recovery under Sec.27 of the Act and instead, as per direction of the Circle Inspector, petitioner had produced the gold thali chain before the CRL.M.C. No.916 of 2011 -: 2 :- said Officer. It is also submitted that though the incident occurred in the year 1993, until 2007 the second respondent did not make no claim for custody of the gold chain. It is contended that at any rate learned Magistrate has directed second respondent to execute bond for `.30,000/- while the gold chain weighs 5.40 sovereigns and value of one sovereign as per present market value is about `16,000/-. Learned counsel for second respondent supported the order under challenge. 2. In view of the contention of learned counsel that there was no recovery under Sec.27 of the Act, I called for a report from the learned Magistrate through the Registrar (Judicial). The Registrar (Judicial) after contacting the learned Magistrate has reported that recovery was made under Sec.27 of the Act. I have also gone through copy of the final report. It is seen that C.W7, Sub Inspector is cited to prove arrest of accused and recovery of (alleged) stolen article based on the confession statement given by the accused. Obviously there is a recovery under Sec.27 of the Act. This court in Krishna Pillai v. Public Prosecutor (1987 [2] KLT 366) has stated that in deciding interim custody of property it is open to the court to consider the records of the case. Learned Magistrate has taken into account the relevant circumstances and held that interim custody of the gold ornament CRL.M.C. No.916 of 2011 -: 3 :- should be given to the second respondent. I do not find reason to interfere. 3. So far as the amount of bond directed by the learned Magistrate is concerned, I am inclined to agree with the contention advanced by petitioner. Having regard to the present market value of gold, second respondent shall execute bond for `75,000/- (seventy five thousand only) with sureties as directed by learned Magistrate. Apart from the condition imposed by the learned Magistrate, second respondent shall also take photographs of the gold chain, attest the same and produce it before learned Magistrate. Resultantly, this Criminal Miscellaneous Case is disposed of modifying the order on Crl. M.P. No.5594 of 2007 in the following lines: (i) The second respondent shall execute bond for `75,000/- (seventy five thousand only) with two solvent sureties as directed by the learned Magistrate. (ii) Second respondent shall produce the CRL.M.C. No.916 of 2011 -: 4 :- gold chain before the learned Magistrate along with self attested colour photographs of the gold chain. Learned Magistrate shall keep the colour photographs in custody and release the gold chain to the second respondent after comparing the same. (iii) Second respondent shall comply with the above conditions within one month from this day. THOMAS P. JOSEPH, JUDGE. vsv