IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.Rev.Pet.No. 899 of 2009(B) ------------------------------------------ CMP.NO.1567/2009 OF JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... PETITIONER/ DEFACTO COMPLAINANT: ---------------------------------------------------------- RAJENDRA PRASAD, S/O.PARAMU, POURNAMI, ALTHARAMOODU, KODAKKAL, KOTTARAKKARA. BY ADV. MR.S.A. SAJU. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 899 OF 2009 ---------------------------------------- Dated this the 3rd day of June, 2009 ORDER Public Prosecutor takes notice for the respondent. 2. Heard counsel for petitioner and the Public Prosecutor. 3. Respondent is the first informant in Crime No.76/2008 of Kadakkal Police Station for offences punishable under Sections 454, 461 and 380 of the Indian Penal Code. 4. Case is that on the night of 4.2.2008 petitioner's house was burgled and gold ornaments valuing about Rs.21 lakhs were stolen. Police registered a case and started investigation. In the course of investigation the accused were arrested and on the information given by them, discoveries were effected. The gold ornaments were produced before the JFCM Court II, Kottarakkara. Thereon, petitioner filed C.M.P.No.1567/2009 for interim custody of the gold ornaments. That application was opposed by the Law Officer. Learned magistrate vide the impugned order dismissed C.M.P.No.1567/2009 observing that if the gold ornaments are released to petitioner, there is possibility Crl.R.P.No.899/09 2 of the same being altered cannot be ruled out and that would affect the identification of the ornaments in the course of trial. Learned counsel contends that the order cannot be sustained in the light of the decision of the Supreme Court in Sunderbhai Ambalal Desai V. State of Gujarat [2003(2) KLT 1089]. 5. Learned Public Prosecutor submits that investigation is almost over but, raised the very same apprehension as his counter part did in the court below. 6. It is seen from the order under challenge that learned Magistrate has not adverted to the direction issued by the Apex court in the decision above cited. However, I am not inclined to allow this petition at this stage for the reason that notice has not been given to the accused and other persons interested in the matter, such as the persons from whom the discoveries were allegedly effected. Without notice to them, request for interim custody cannot be entertained. Hence I am inclined to remit the petition to the Court below for fresh consideration in the light of the observation made above and after giving notice to all parties interested in the matter. Resultantly, this revision petition is allowed. Order Crl.R.P.No.899/09 3 under challenge is set aside and C.M.P.1567/2009 is remitted to the court below for fresh consideration and disposal in the light of the observation made above and the decision of the apex court. The petitioner shall appear in the court below on 20.6.2009. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.899/09 4