IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 Crl.MC.No. 458 of 2008(D) ---------------------------------- CMP.220/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA (CRIME NO.655/2007 OF CHENGAMANAD POLICE STATION) ............................................. PETITIONER(S): PETITIONER: ------------------------------------------ REGHUNATH, S/O.SANKARAN, PERATHU HOUSE, CHEEYARAM, OLLUR, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COUNTER PETITIONER: ----------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE C.I. OF CHENGAMANAD POLICE STATION. PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.458,460 & 463 OF 2008 =========================== Dated this the 7th day of September,2009 ORDER In Crime No.655/2007 of Chengamanad Police Station registered for the offence under sections 397 and 365 of Indian Penal Code gold ornaments allegedly involved in the case was seized and produced before the court. So also articles including television set, DVD, Washing Machine, Furniture and Home theatre were seized from the house of fifth accused. Petitioner is the de facto complainant. Case of the petitioner is that 3.567 kilo grams of gold which was being transported in Ambassador car bearing reg. No.KL.01-AL-5356 on 11.8.2007 at about 8.25 a.m, along the National Highway was stopped by a Qualis Jeep by five identifiable persons and the gold ornaments were forcibly taken away and petitioner thereby lost gold worth Rs.31.60,800/-. Petitioner filed Crl.M.P.220/2008 under section 451 of Code of Criminal Procedure for interim custody of the articles seized including the articles seized from the house of the fifth accused, contending that those articles were purchased using the funds obtained by selling the gold Crl.M..C.458,460 & 463 of 2008 2 belonging to the petitioner. It is also contended that the gold ornaments seized and produced were identified by the petitioner as part of the stolen articles. 2. Under Annexure C order dated 21.01.2008 (in Crl.M.C.458/2008) learned Magistrate dismissed the petition holding that in view of the order passed in Crl.M.P.160/2008 whereunder interim custody was granted petitioner cannot be granted, interim custody. Crl.M.C.458/2008 is filed challenging that order. 3. Crl.M.C.463/2008 is filed challenging Annexure C order passed by the Judicial First Class Magistrate I, Aluva on 16.1.2008 in C.M.P.160/2008 filed by the fifth accused the first respondent herein, whereunder interim custody of the gold ornaments were given to the first respondent. 4. Crl.M.C.460/2008 is filed challenging Annexure C order therein dated 22.12.2007 in C.M.P.4666/2007 filed by the first respondent the mother of the fifth accused. Under Annexure C order first respondent was granted interim custody of the articles seized from the house, though the learned Magistrate found that the evidence shows that the household items were purchased subsequent to the commission of the offence and the prosecution case is that the said articles were purchased out of the funds obtained by sale Crl.M..C.458,460 & 463 of 2008 3 of the stolen gold. 5. Though notice was served on the respective first respondent in Crl.M.C.460/2008 and 463/2008, the mother of the fifth accused, and the fifth accused, they did not appear. 6. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 7. Annexure C order in Crl.M.C.463/2008 shows that the gold ornaments seized as the stolen articles were granted on interim custody to the fifth accused for the sole reason that nobody else has claimed the article. Case of the petitioner is that he was not informed about the petitions filed by either the fifth accused or his mother and in the application filed by the petitioner before the learned Magistrate, prosecution admitted that interim custody could be given to the petitioner. It is therefore argued that the orders granting interim custody to the fifth accused and the mother are to be quashed. 8. Learned Public Prosecutor submitted that the learned Magistrate should not have granted interim custody of the gold ornaments to the accused. In any case as claim of the petitioner was not considered, learned Magistrate may be directed to consider all the petitions together. 9. While granting interim custody of the gold Crl.M..C.458,460 & 463 of 2008 4 ornaments, seized and produced before the court, to one of the accused, learned Magistrate has stated that it is being given as no other person has claimed interim custody. Learned Magistrate omitted to take note of the fact that the gold ornaments produced before the court were part of the stolen articles claimed to be that of the petitioner. In such circumstance, before granting interim custody and that too, for the sole reason that no other claimant raised any claim, learned Magistrate should have given notice to the de facto complainant. Moreover, granting interim custody of gold ornaments to an accused for the reason that nobody else raised any claim for interim custody is not at all justifiable. Therefore Annexure C order passed in C.M.P. 160/2008 can only be quashed. 10. Similarly C.M.P.220/2008 was dismissed for the sole reason that interim custody has already been ordered in C.M.P.160/2008. When the order in C.M.P.160/2008 is quashed, necessarily C.M.P.220/2008 has to be reconsidered. 11. Though learned Magistrate granted interim custody of the articles seized from the house of the fifth accused to his mother on conditions, the de facto complainant was not heard before granting interim custody. When it is the case of the prosecution and the de facto complainant that Crl.M..C.458,460 & 463 of 2008 5 those articles were purchased using the funds realised by the sale of the gold ornaments stolen from the petitioner, learned Magistrate should have given notice to the petitioner in C.M.P. 4666/2007 also. As it is not done, Annexure C order in Crl.M.C.460/2008 can only be quashed. Petitions are allowed. The orders in C.M.P.4666/2007, C.M.P.160/2008 and C.M.P. 220/2008 on the file of Judicial First Class Magistrate Court-I, Aluva in Crime No.655/2007 of Chengamanad Police Station are quashed. Learned Magistrate is directed to reconsider the applications and pass appropriate orders in accordance with law after hearing the parties including the petitioner. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006