IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 Crl.MC.No. 1131 of 2011() ------------------------- AGAINST THE ORDER DATED 16/03/2011 IN CMP.556(A)/2011 IN CC.1507/2010 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... PETITIONER(S): PETITIONER ------------------------- SUNNY,S/O.POULOSE,AGED 46 YEARS, POIKATTIL VEEDU,WEST MORAKKAL KARA, KUNNATHUNAD VILLAGE. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1131 of 2011 --------------------------------------- Dated this 12th day of April, 2011 ORDER Petitioner is the de facto complainant in Crime No.506 of 2010 of Kunnathunad Police Station and C.C.No.1507 of 2010 of the Court of learned Judicial First Class Magistrate, Kolenchery for offences punishable under Secs.457, 461 and 380 of the Indian Penal Code. Allegation is regarding theft of money from the shop of petitioner. Police seized certain amount and produced the same in Court. Petitioner filed C.M.P.No.556(A) of 2011 for interim custody of the said amount. Learned Magistrate has dismissed that petition vide Annexure-I, order dated 16.03.2011 observing that even if petition is allowed, petitioner cannot use the amount, charge sheet is already filed and trial can be expedited. Learned counsel submitted that money belongs to the petitioner and since the amount has already been deposited in the Criminal Court Deposit, no question of identity is involved. Petitioner is prepared to produce bank guarantee for the amount involved. I have heard learned Public Prosecutor also. 2. It is seen that the accused is not given notice of C.M.P.No.556(A) of 2011. Necessarily notice of the petition had to Crl.M.C.No.1131/2011 2 be given to him also. An order passed without him cannot be sustained since he may have a claim over the property, whether justifiable or not. In view of that, I am inclined to set aside the order and remit C.M.P.No.556(A) of 2011 to the learned Magistrate for fresh disposal. Learned Magistrate may also consider whether, in case there is no possibility of the trial being conducted immediately and the case being disposed of without delay, the amount in deposit could be given to the petitioner by way of interim custody on the security of bank guarantee and other conditions. There appears to be some merit in the contention of learned counsel that since the amount is deposited in the Criminal Court Deposit, identity of the amount seized cannot be ensured. Resultantly this criminal miscellaneous case is allowed and the order under challenge is set aside. C.M.P.No.556(A) of 2011 (in C.C.No.1507 of 2010 of the Court of learned Judicial First Class Magistrate, Kolenchery) is remitted to that Court for fresh decision in the light of the observations made above and after giving notice to the accused also. Learned Magistrate shall expedite the proceeding on the petition. (THOMAS P JOSEPH, JUDGE) Sbna/-