IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 WA.No. 928 of 2010 -------------------- AGAINST THE JUDGEMENT IN WPC.9715/2010 Dated 29/03/2010 .................... APPELLANT/3RD PARTY: -------------------------- N.DEVAKI AMMA, W/O. LATE K.NARAYANA PILLAI, MOHANA VILASAM HOUSE, THAZHATH VADAKKU.P.O PATTAZHI, KOLLAM DISTRICT. BY ADV. SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENTS/PETITIOER & RESPONDENTS: ------------------------------------------------- 1. LINU JACOB @ MARIAMMA, AGED 54, WIFE OF VARGHESE, CANAVIL HOUSE, THARHATHUVADAKKU.P.O., HEADMISTRESS, ST. PAUL'S U.P.SCHOOL, KATTUKUNNEL, PATTAZHY, VADAKKEKARA, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE REVENUE DIVISIONAL OFFICER, KOLLAM. 4. THE TAHSILDAR, PATHANAPURAM. 5. THE VILLAGE OFFICER, PATTAZHY, VADAKKEKARA VILLAGE. 6. THE SUB INSPECTOR OF POLICE, PATHANAPURAM POLICE STATION. R1 BY ADV. SRI. PRAVEEN K. JOY R2 TO R6 BY SENIOR GOVT.PLEADER, SMT. K. MEERA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, CJ. & P.N.Ravindran, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 928 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2010 JUDGMENT J.Chelameswar, CJ. This writ appeal is preferred by a third party to the WP(C) No.9715 of 2010 which was disposed of by a short order dated 29.03.2010. The writ petition is filed with a prayer as follows: “(i) To issue appropriate writ, order or direction in the nature of mandamus directing the 2nd respondent to consider Ext.P6 application and issue direction to release the teak wood of St.Paul's U.P. School, Pattazhy, upon such conditions as may be deemed fit, and proper within a time limit, in the interest of justice;” 2. The petitioner in the writ petition claims to be the Headmistress of a School named as St.Paul's U.P. School at Methukunnel, Pattazhy, Vadakkekara, Kollam District. It appears that there was a teakwood tree in the compound of the School. According to the writ petitioner the Board of Management of the School vide decision dated 02.07.2006 decided to cut down the tree and accordingly the tree was cut. In that background a complaint came to be made to the police WA No.928 of 2010 -:2:- and Crime No.395 of 2008 was registered by the 5th respondent in the writ petition and the said teak tree was admittedly in the custody by the police. It is in the abovementioned background a writ petition came to be filed with the prayer already noticed. By the judgment under appeal the learned Judge of this Court disposed of the writ petition directing the Revenue Divisional Officer to take a decision on Ext.P6 representation made by the writ petitioner. Hence the present appeal by the third party who claims to have some interest on the management of the said school and filed a separate writ petition, WP(C) No.35447 of 2005, making claims of right to the management of the abovementioned school. 3. According to us, both the writ petition and the writ appeal are sheer abuse of the process of this Court. When somebody seeks the interim custody of the property which is produced before a competent criminal court or seized by police in connection with a crime, the appropriate procedure for seeking the interim custody of such seized material is prescribed under Sections 456 & 457 of the Criminal Procedure Code which read as WA No.928 of 2010 -:3:- follows: “456. Power to restore possession of immovable property:-(1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it appears to the Court that, by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property: Provided that no such order shall be made by the Court more than one month after the date of the conviction. (2) Where the Court trying the offence has not made an order under sub-section (1), the Court of appeal, confirmation or revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be. (3) Where an order has been made under sub-section(1), the provisions of section 454 shall apply in relation thereto as they apply in relation to an order under section 453. (4) No order made under this section shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit. 457. Procedure by police upon seizure of property:- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such WA No.928 of 2010 -:4:- property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions(if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.” 4. The writ petitioner/respondent herein instead of availing the remedy under Section 457, hastened to this Court and the appellant makes a further unnecessary step of preferring an appeal against the matter. In the circumstances, the Writ Appeal is disposed of directing the parties to approach the appropriate criminal court for the interim custody of the property which is lying in the custody of the police as described above. In the circumstances, we are of the opinion that both the parties be directed to pay cost to the High Court Legal Services Committee in a sum of Rs.2,000/- each. Accordingly, the appellant and the first respondent in the instant appeal are WA No.928 of 2010 -:5:- directed to pay a sum of Rs.2,000/- each as cost to the High Court Legal Services Committee, failing which the Secretary of the High Court Legal Services Committee will be at liberty to recover the same in accordance with law. J.Chelameswar, Chief Justice. P.N.Ravindran, Judge. ttb