IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 Crl.MC.No. 828 of 2011() -------------------- CMP.216/2011 IN CR.NO.402/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, HOSDRUG .................. PETITIONER / COMPLAINANT : ---------------------------------------------- K.M.ABDUL KAREEM, MANAGING PARTNER, RAJADHANI GOLD SUPERMARKET, KANHANGAD. BY ADVS. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.P.M.RAFIQ SRI.V.C.SARATH RESPONDENTS / RESPONDENTS : ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S.MUTHOOT FINANCE LTD., REPRESENTED BY ITS POWER OF ATTORNEY AND BRANCH MANAGER, KANHANGAD, H.D.RAVEENDRA, AGED 62 YEARS, S/O.H.DEVARAYA, DEVANNA HOUSE, P.O.KANHANGAD, KANHANGAD VILLAGE, HOSDURG TALUK. R1 BY PUBLIC PROSECUTOR SRI. V. MANU R2 BY ADVS. SRI.ALEXANDER THOMAS SRI.SINU.G.NATH SRI. P.A. JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 828 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE - A : CERTIFIED COPY OF THE ORDER IN C.M.P NO. 216/2011 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE -I, HOSDURG DATED 22.01.2011. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.828 of 2011 --------------------------------------- Dated this 17th day of June, 2011 ORDER Petitioner is aggrieved by condition Nos.6 to 8 imposed by the learned Judicial First Class Magistrate-I, Hosdurg in Annexure-A, order dated January 22, 2011 on C.M.P.No.216 of 2011 in Crime No.402 of 2010 of the Hosdurg Police Station. That case is registered for offence punishable under Secs.454, 380, 461 and 414 of the Indian Penal Code. A portion of the gold ornaments (allegedly) involved in the incident was recovered by the police and produced before learned Magistrate. Petitioner filed C.M.P.No.216 of 2011 for interim custody of the said ornaments under Sec.451 of the Code of Criminal Procedure (for short, "the Code”). The second respondent got impleaded in the said C.M.P and filed C.M.P.No.414 of 2011 for release of the gold ornaments claiming that it was seized from his shop. Learned Magistrate considered the rival contentions and allowed C.M.P.No.216 of 2011 filed by the petitioner subject to conditions. Condition Nos.6 to 8 are challenged in this proceeding. Learned counsel submitted that the said conditions interfere with the right of petitioner to use the ornaments. It is Crl.M.C.No.828 of 2011 -: 2 :- contended that petitioner is a partner of a firm to which the ornaments belonged. Learned counsel invited my attention to the decision of the Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujarat (AIR 2003 SC 638) and in particular the observations in paragraph 7 where it is stated that passing orders under Sec.451 of the Code expeditiously and judicially would serve various purposes namely, the owner of the article would not suffer because of its remaining unused or by its misappropriation. Learned counsel for second respondent contended that the observations in paragraph 12 of the decision would stand in the way of petitioner being permitted to dispose of the ornaments. Learned Public Prosecutor submitted that investigation of the case is almost at the fag end and without further delay the police would submit a final report in the matter. 2. Condition Nos.6 to 8 in the impugned order is under: (vi) Petitioner shall produce the ornaments once in three months before this Court for verification by the Court. (vii) Petitioner shall not pledge, sell, auction or make any alteration to the ornaments. (viii) Petitioner shall produce the ornaments before this Court as and when directed. As per the said conditions petitioner could not pledge, sell, auction or make alteration of the ornaments. He is also required to produce the ornaments as directed by the learned Magistrate Crl.M.C.No.828 of 2011 -: 3 :- vide condition Nos.7 and 8. True, in paragraph 7 of the decision referred above it is observed that interim custody is being given because the owner of the article would not suffer due to its remaining unused or by its misappropriation. The said observation cannot be understood as meaning that the person to whom interim custody of the article is given could dispose of the same. On the other hand the observation in paragraph 12 is that preparation of detailed proper panchanama, taking photographs of such articles and a bond is to ensure that if required, the articles taken custody is produced at the time of trial. 3. True, photographs of the articles may be given as secondary evidence. But, dispute regarding identity of the article could crop up in the course of trial in different ways. In such a situation if the articles given custody are not available to be produced before the Court for proper identification it may affect prospects of the prosecution case itself. Viewed in that line, I am unable to accept the request of petitioner that he may be permitted to dispose of the gold ornaments. He has to produce the gold ornaments as and when directed. 4. Then the question is whether condition No.6 should remain. As per the said condition petitioner has to produce the ornaments once in three months for verification. I am not inclined to think that the said condition should remain in force Crl.M.C.No.828 of 2011 -: 4 :- when condition Nos.7 and 8 require that petitioner shall not pledge, sell, auction or make any alteration of the ornaments and shall produce the same before Court as and when directed. In the light of condition Nos.7 and 8, I am inclined to think that it is an unnecessary burden on petitioner that condition No.6 remains in force. Condition No.6 could be deleted. Resultantly this criminal miscellaneous case is allowed in part to the extent that condition No.6 in Annexure-A, order dated January 22, 2011 on C.M.P.No.216 of 2011 of the Court of learned Judicial First Class Magistrate-I, Hosdurg in Crime No.402 of 2010 of Hosdurg Police Station is lifted with effect from this day. Other conditions will remain in force. Investigating officer is directed to complete investigation and submit final report as early as possible and the learned Magistrate, on the final report being filed, shall expedite trial and disposal of the case. (THOMAS P JOSEPH, JUDGE) Sbna/-