IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 CRL.A.No. 1093 of 2007() ------------------------ AGAINST THE ORDER DATED 30/05/2007 IN CMP.37/2006 IN SC.58/1998 of ADDL.ASSISTANT SESSIONS COURT, KOTTAYAM .................... APPELLANT: PETITIONER: ---------------------- P.A. PALANI ACHARI, VELIKKAKAM HOUSE, MUNDAKAYAM KARA, MUNDAKAYAM VILLAGE, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H. RESPONDENTS: RESPONDENTS: ------------------------- 1. CIRCLE INSPECTOR OF POLICE, KANJIRAPPALLY, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MANIYAPPANACHARI, S/O. GOVINDANACHARI, GANAMATHIRATHIL VEEDU, PUZHAVATHU KARA, CHANGANACHERRY. 3. RAVI, S/O. KRISHNANACHARI, AGED 32 YEARS, GANAMATHIRATHIL VEEDU, PUZHAVATHU KARA, CHANGANACHERRY. 4. ANSARI, S/O. HAMSA, PUTHUPARAMBIL VEEDU, ALLAMPARA BHAGOM, VAZHAPPALLY KIZHAKKU KARA, CHANGANACHERRY. 5. ASHRAF, S/O. MOIDEENKUNJU, MEEYAMPARAMPIL HOUSE, ALLAMPARA BHAGOM, VAZHAPPALLY KIZHAKKU BHAGOM, CHANGANACHERRY. 6. K.K. THOMAS @ SHAJI, S/O. KURIAKOSE, KALAPPURACKAL VEEDU, KURISHUMOODU KARA, CHETHIPUZHA, CHANGANACHERRY. -2- 7. PRADEEP @ SURESH, S/O. PURUSHOTHAMAN, KALARICKAL HOUSE, KANNANCHIRA BHAGOM, VAKATHANAM, KOTTAYAM. 8. SENOJ @ KOCHUCHERUKKAN, S/O. THAPPAN, PADYATHIL VEEDU, CHETHIPUZHA, CHANGANACHERRY. 9. SURESH, S/O. JOHN, KOCHUPARAMBIL VEEDU, CHETHIPUZHA, CHANGANACHERRY. 10. MANOJ KUMAR, S/O. PADMANABHAN, KATTAMKUNNEL VEEDU, 8TH MILE, KATTAMKUNNEL, VELLOOR KARA, PAMPADY, KOTTAYAM. 11. SHEBU @ KUTTAN, S/O. KESAVAN, PULICKAL VEEDU, 7TH MILE, ORAMATTOM BHAGOM, VELLOOR KARA, PAMPADY, KOTTAYAM. 12. MURUGAN, S/O. CHEMMAYYANACHARI, PUTHUPARAMBIL VEEDU, PUTHENCHANTHA KARAYIL, ERUMELI, KOTTAYAM. BY P.P. SRI. AMJAD ALI. BY ADV. SRI.V.K.SUNIL FOR R6 & 12 SRI.V.K.SUNIL FOR R2,3,4,7TO9 SRI.AJEY THOMAS FOR R2,3,6,8,9 & 12 SRI.AJEY THOMAS FOR R4,7 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.A. No. 1093 of 2007 ------------------------------------------------- Dated this the 17th day of July, 2008 JUDGMENT The appellant/petitioner is P.W.29 in S.C.No.58/98 in which respondents 2 to 12 faced indictment for offences punishable under Sec.395 IPC. Some of them have been convicted and the convicted accused have preferred three Criminal Appeals before this Court which are pending as Crl.A.Nos.1252, 1275 & 1276/06. In the judgment passed by the Sessions Court, there is a specific direction that M.Os.1 to 16, which are gold ornaments and gold ingots, shall be released to the appellant herein. After the said judgment was passed on 29/6/06, the petitioner filed an application before the lower court with a prayer that the said M.Os. may be released to the petitioner. That application was rejected by Crl.A. No. 1093 of 2007 -: 2 :- the impugned order holding that as the appeals are pending, the material objects cannot be returned before the disposal of the appeals. Reckoning that as an order under Sec.452 Cr.P.C. the petitioner has come to this Court with this appeal under Sec.454 Cr.P.C. praying that the appellant may be granted the relief of immediate release of M.Os.1 to 16 subject to any appropriate conditions that this Court may deem fit to impose in the light of the decision in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638). 2. Notice has been served on all the respondents. There is no appearance for any of the respondents, except the 1st respondent/State. The connected appeals were also directed to be called along with this appeal. Still, the learned counsel for the appellants in those cases have not chosen to appear and resist the prayer for release. 3. I am, in these circumstances, satisfied that the grievance of the appellant/petitioner is justified. The M.Os. Have remained in the custody of the police and the court for a period of exceeding 1 ½ decades by now. I am satisfied that M.Os.1 to 16 can now be directed to be released to the appellant subject to appropriate safeguards to be fixed by the court below. Crl.A. No. 1093 of 2007 -: 3 :- 4. In the result: (a) This appeal is allowed. (b) The learned Additional Assistant Sessions Judge, Kottayam, is directed to ensure that M.Os.1 to 16 are released to the appellant/petitioner subject to appropriate safeguards to be imposed by the learned Judge in his discretion in the light of the decision in Sunderbhai Ambalal Desai. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge