Kerala High CourtSuresh Serve V vs State Of Kerala Represented By on 19 May, 2020Equivalent citations: AIRONLINE 2020 KER 1034Author:A.HariprasadBench:A.HariprasadC.R.\n           IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\n                             PRESENT\n\n            THE HONOURABLE MR. JUSTICE A.HARIPRASAD\n\n                                &\n\n            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR\n\n      TUESDAY,19TH DAY OF MAY, 2020 / 29TH VAISAKHA, 1942\n\n                    Crl.MC.No.6554 OF 2019(H)\n\n AGAINST THE ORDER DATED 02-08-2019 IN Crl.MP NO.3898/2019 OF\n       CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA\n\n     CRIME NO.1880/2019 OF PATHANAMTHITTA POLICE STATION\n\n\nPETITIONER/PETITIONER:\n\n            SURESH SERVE V.,AGED 47 YEARS\n            S/O. VITHOBA SERVE P., KRISHNA NIVAS,\n            THAIKKAVU PETTA, PATHANAMTHITTA DISTRICT.\n\n            BY ADVS.\n            SRI.M.T.SURESHKUMAR\n            SRI.R.RANJITH\n\nRESPONDENT/STATE:\n\n            STATE OF KERALA REPRESENTED BY\n            THE PUBLIC PROSECUTOR,\n            HIGH COURT OF KERALA,\n            ERNAKULAM, 682 031.\n\n            BY SRI.S.U.NAZAR, SENIOR PUBLIC PROSECUTOR\n\n\n     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD         ON\n19.02.2020, THE COURT ON 19.05.2020 PASSED THE FOLLOWING:\n Crl.MC No.6554 of 2019                2\n\n\n\n\n                                                       C.R.\n\n\n\n\n                  A.HARIPRASAD & N.ANIL KUMAR, JJ.\n                       --------------------------------------\n                         Crl.M.C.No.6554 of 2019\n                       --------------------------------------\n                   Dated this the 19th day of May, 2020\n\n                                   ORDERHariprasad, J.Specific question begging for an answer in this order of\n\nreference is whether or not gold ornaments and money could be released in\n\ninterim custody underSection 451of the Code of Criminal Procedure, 1973\n\n(in short, "Cr.P.C.") to a person claiming to be the owner of jewellery/money\n\nwithout incorporating a condition that the said articles should be produced\n\nbefore the court, as and when directed, exactly in the same condition as they\n\nwere at the time of entrustment?2.    Aggrieved by conditions 2 and 4 in Annexure-A3 order passed\n\nby the Chief Judicial Magistrate, Pathanamthitta on Crl.M.P.No.3898 of 2019\n\nin Crime No.1880 of 2019 of Pathanamthitta Police Station, the\n\npetitioner/claimant has approached this Court seeking modification of the\n\nconditions. A learned single Judge, vide reference order dated 09.10.2019,Crl.MC No.6554 of 2019                      3raised the above mentioned question and as ordered by the Hon'ble the\n\nChief Justice, the matter has been placed before us.3.       Short   facts   relevant     for    the    decision   are    as    follows:Pathanamthitta police registered Crime No.1880 of 2019 for an offence\n\npunishable underSection 392of the Indian Penal Code, 1860 (in short,\n\n"IPC"). Annexure-A1 takes in both the first information statement (FIS) and\n\nthe first information report (FIR). Sales Manager, Krishna Jewellery,\n\nPathanamthitta has lodged FIS on the allegation that the accused 1 to 4 on\n\n28.07.2019 at 16.30 hours trespassed into the jewellery store, tied up the\n\ndefacto complainant, physically assaulted him and thereafter they robbed\n\n3.5 kgs. of gold ornaments kept in a locker and also `13 lakhs in cash. Total\n\nloss estimated is `1,25,70,000/-. With these allegations, the case was\n\nregistered.4.       Annexure-A2 is copy of the petition filed by the defacto\n\ncomplainant underSection 451Cr.P.C seeking an order for release of cash\n\nand gold ornaments produced before the court by the investigating officer.5.       After considering all the contentions of the petitioner, Annexure-A3 order was passed by the Court. Placing reliance on the Supreme Court's\n\ndecision in Sunderbhai Ambalal Desai v. State of Gujarat ((2002) 10 SCC283) and another decision by this Court inThomas Koshy v. State of\n\nKerala(2010 KHC 617), the trial court issued the following directions:"1.   The     petitioner       shall    execute     bond   for\n           Rs.1,50,00,000/- (One Crore fifty lakhs only) with 2 solventCrl.MC No.6554 of 2019                        4sureties, each for the like sum for production of the articles\n           before the court.2.       The petitioner shall furnish security of bank\n           guarantee for Rs.1,50,00,000/- before this Court.3.       The petitioner shall not use the above articles\n           for committing any crimes.4.       The petitioner shall produce the above articles\n           before the court in the same condition as and when\n           required.5.       The    petitioner       shall   produce   attested\n           photographs of the above articles counter signed by the\n           Sub Inspector of Police, Pathanamthitta.6.       Detailed Mahazar of all the above articles shall\n           be prepared before giving its interim custody to the\n           petitioner."6.       Conditions 2 and 4 above are under challenge.7.       Heard the learned counsel for petitioner and learned Public\n\nProsecutor.8.       We shall start by referring to the facts in Sunderbhai Ambalal\n\nDesai's case. The petitioners, who were certain police inspectors, along with\n\nother police personnel, were allegedly involved in offences punishable underSections 429,420,465,468,477Aand114of the Indian Penal Code (in\n\nshort, "IPC"). Prosecution case was that when they worked at various police\n\nstations they committed offences during certain period by replacement of\n\nmudammal articles including gold ornaments by other spurious articles,\n\nmisappropriation of amounts kept in the police station, unauthorised auctionCrl.MC No.6554 of 2019                 5of property seized and kept in police custody pending trial and tampering\n\nwith records in the police station.9.     In the above case, questions relating to interpretation ofSection\n\n451Cr.P.C. have been raised before the apex Court. In paragraphs 10 to 14\n\nfollowing observations are made:"10. To avoid such a situation, in our view, powers\n       underSection 451, Cr. P.C. should be exercised promptly\n       and at the earliest.Valuable Articles and Currency Notes11. With regard to valuable articles, such as, golden or silver\n       ornaments or articles studded with precious stones, it is\n       submitted that it is of no use to keep such articles in police\n       custody for years till the trial is over. In our view, this\n       submission requires to be accepted. In such cases,\n       Magistrate should pass appropriate orders as contemplated\n       underSection 451, Cr. P.C. at the earliest.12. For this purpose, if material on record indicates that such\n       articles belong to the complainant at whose house theft,\n       robbery or dacoity has taken place, then seized articles be\n       handed over to the complainant after :-(1) preparing detailed proper panchnama of sucharticles;\n       (2)taking photographs of such articles and a bond that such\n       articles would be produced if required at the time of trial; and\n       (3) after taking proper security.13. For this purpose, the Court may follow the procedure of\n       recording such evidence, as it thinks necessary, as provided\n       underS. 451, Cr. P.C. The bond and security should be taken\n       so as to prevent the evidence being lost, altered orCrl.MC No.6554 of 2019                6destroyed. The Court should see that photographs of such\n       articles are attested or countersigned by the complainant,\n       accused as well as by the person to whom the custody is\n       handed over. Still however, it would be the function of the\n       Court underSection 451, Cr. P.C. to impose any other\n       appropriate condition.14. In case, where such articles are not handed over either to\n       the complainant or to the person from whom such articles are\n       seized or to its claimants, then the Court may direct that such\n       articles be kept in bank lockers. Similarly, if articles are\n       required to be kept in police custody, it would be open to the\n       SHO after preparing proper panchnama to keep such articles\n       in a bank locker. In any case, such articles should be\n       produced before the Magistrate within a week of their\n       seizure. If required, the Court may direct that such articles be\n       handed over back to the Investigating Officer for further\n       investigation and identification. However, in no set of\n       circumstances, the Investigating Officer should keep such\n       articles in custody for a longer period for the purpose of\n       investigation and identification. For currency notes, similar\n       procedure can be followed."10.   Learned single Judge mentioned in the reference order that in\n\nSunderbhai Ambalal Desai's case the Court did not consider the rights of\n\na claimant who seeks release of gold ornaments in interim custody for\n\nutilising the same for his routine business. In other words, in the above\n\ndecision there was no occasion for the court to pronounce on a situation\n\nwhere the jewellery could be given to the claimant unconditionally allowingCrl.MC No.6554 of 2019                  7him to sell them out to prospective customers pending trial.     In   our   view,\n\nthere is no limitation either explicitly or implicitly imposed in Sunderbhai\n\nAmbalal Desai's case by the apex Court on the powers of a criminal court,\n\nexercisable underSection 451Cr.P.C, to meet the ends of justice having\n\nregard to the peculiar facts and circumstances established in each case.11.     Yet another decision relied on by the court below isThomas\n\nKoshy's case (supra).In that case, a learned single Judge, relying on\n\nSunderbhai Ambalal Desai's case, interfered with an order passed by the\n\nMagistrate declining to issue an order underSection 451Cr.P.C. for\n\nreleasing gold ornaments involved in a theft case. We find no specific legal\n\nprinciple laid down in this decision.12.     It may be apposite to note the scheme for disposal of property\n\nset out in Chapter XXXIVCr.P.C..Section 451Cr.P.C. is quoted hereunder\n\nfor clarity:"451. Order for custody and disposal of property\n         pending trial in certain cases.- When any property is\n         produced before any Criminal Court during an inquiry or\n         trial, the Court may make such order as it thinks fit for the\n         proper custody of such property pending the conclusion of\n         the inquiry or trial, and, if the property is subject to speedy\n         and natural decay, or if it is otherwise expedient so to do,\n         the Court may, after recording such evidence as it thinks\n         necessary, order it to be sold or otherwise disposed of.Explanation.- For the purposes of this section,\n         "property" includes -Crl.MC No.6554 of 2019                8(a)    property of any kind or document which is produced\n       before the Court or which is in its custody.(b)    any property regarding which an offence appears to\n       have been committed or which appears to have been used\n       for the commission of any offence."13.    This Section enables the courts to pass orders for custody or\n\ndisposal of property during or trial.Section 452Cr.P.C. deals with orders for\n\ndisposal of property at the conclusion of trial. By virtue of the Explanation\n\nadded toSection 451, the word "property" has been given a wider meaning\n\nthan it ordinarily has. The only precaution to be taken by a trial court is to\n\nensure that while disposing an application for return of property, all the\n\nconcerned persons are duly informed.14.    Another provision relevant in this context isSection 457Cr.P.C.\n\nwhich speaks about the procedure for disposal of property seized by the\n\npolice, but which is not produced before a criminal court during inquiry or\n\ntrial. Orders passed both underSections 451and457are during inquiry or\n\npendency of trial.15.    Learned counsel for the petitioner relied on a decision by a\n\nlearned single Judge of the High Court of Delhi inManjit Singh v. State(2014 0 Supreme (Del) 2080). On a perusal of the facts involvedin that\n\ncase, it can be seen that the subject matter of dispute was a Ford\n\nEndeavour car, which was allegedly stolen by somebody.Learned single\n\nJudge issued various guidelines regarding disposal of property underCrl.MC No.6554 of 2019                   9Section 451Cr.P.C. Since parameters about release of vehicles have been\n\nspecifically dealt with in Sunderbhai Ambalal Desai's case, we find the\n\nobservations in Manjit Singh are only reiteration of the same. Moreover, the\n\nfacts in that case are dissimilar to that in this case.16.    Another decision relevant to be mentioned in this regard isGeneral Insurance Council and others v. State of Andhra Pradesh and\n\nothers((2010) 6 SCC 768). Following in footsteps Sunderbhai Ambalal\n\nDesai, this decision was rendered.InGeneral Insurance Council's case,\n\nthey contended that despite the directions passed in Sunderbhai Ambalal\n\nDesai, there was no full and complete compliance of the same. They,\n\ntherefore, approached the Supreme Court for issuing further directions, so\n\nthat national waste, with regard to seized vehicles involved in commission of\n\nvarious offences, should not be allowed to occur and they should not be\n\nallowed to become junk and unworthy of plying on road. In that context, the\n\nSupreme Court reiterated that the mandate ofSection 451read withSection\n\n457Cr.P.C. should be followed with regard to seized vehicles. Since the\n\nquestions raised in this case and the case on hand are different, we cannot\n\napply the principles stated therein to release the jewellery involved.17.    Our attention has been drawn to a decision, by a learned single\n\nJudge inV.Parakashan v. K.P.Pankajakshan(1985 Cri.L.J. 951) dealing\n\nwith object, nature and effect of passing an order underSection 451Cr.P.C.\n\nfor interim custody. It reads thus:"S.451enables the Magistrate to provide for interimCrl.MC No.6554 of 2019                 10custody of property pending conclusion of inquiry or trial. It\n         is only a temporary arrangement and what is contemplated\n         is only an interim provision to provide custody with a proper\n         person as the Court thinks fit with liability to produce the\n         property back as and when directed by the Court. The\n         maximum duration of the arrangement is only till conclusion\n         of the inquiry or trial. It follows that the arrangement is only\n         temporary and the main object is to protect or preserve the\n         property pending trial. Even if the person entrusted with\n         interim custody is the owner his possession or custody\n         during the period of entrustment is only as representative of\n         the Court and not in his independent right."It is to be noticed that in this decision, the learned single Judge has not\n\nconsidered the decision inBasavva Kom Dyamogouda Patil v. State of\n\nMysore(AIR 1977 SC 1749).18.   On a plain reading ofSection 451Cr.P.C., it can be seen that\n\nthe power to order for custody and disposal of property pending trial has to\n\nbe exercised by the court by applying judicial discretion and the\n\narrangement once made thereunder is not even final till the conclusion of\n\ninquiry or trial. The court is having a right to terminate the entrustment, get\n\nback the property from the person to whom it was given and entrust it to\n\nsomebody else whom the court deems fit. In cases of rival claims for interim\n\ncustody, preference of one person over the other does not settle any right to\n\nownership or possession.19.   Recently, a learned single Judge of this Court inNagarajan v.Crl.MC No.6554 of 2019               11State of Kerala(2019 (5) KHC 666) considered the scope ofSection 451Cr.P.C. in the context of jewellery looted from a shop.Learned single Judge\n\nhas made a reference to a passage inBasavva Kom Dyamogouda Patil(supra) wherein it has been held thus:"The object and scheme of the various provisions of\n        the Code appear to be that where the property which has\n        been the subject-matter of an offence is seized by the police\n        it ought not to be retained in the custody of the Court or of\n        the police for any time longer than what is absolutely\n        necessary. As the seizure of the property by the police\n        amounts to a clear entrustment of the property to a\n        Government servant, the idea is that the property should be\n        restored to the original owner after the necessity to retain it\n        ceases. It is manifest that there may be two stages when the\n        property may be returned to the owner. In the first place it\n        may be returned during any inquiry or trial. This may\n        particularly be necessary where the property concerned is\n        subject to speedy or natural decay. There may be other\n        compelling reasons also which may justify the disposal of\n        the property to the owner or otherwise in the interest of\n        justice. The High Court and the Sessions Judge proceeded\n        on the footing that one of the essential requirements of the\n        Code is that the articles concerned must be produced before\n        the Court or should be in its custody. The object of the Code\n        seems to be that any property which is in the control of the\n        Court either directly or indirectly should be disposed of by\n        the Court and a just and proper order should be passed by\n        the Court regarding its disposal."(underline supplied)Crl.MC No.6554 of 2019                 12Considering the precedents on the point, the learned single Judge took a\n\nview that the expression "if it is otherwise expedient so to do" occurring inSection 451Cr.P.C confers a discretion upon the court to order sale of\n\nproperty other than a property which is subject to speedy and natural decay.\n\nOn a careful reading ofSection 451Cr.P.C., we agree with the view\n\nexpressed by the learned single Judge.20.     When a criminal court exercises its jurisdiction underSection\n\n451Cr.P.C., the following aspects become germane for consideration:(I)     Any property must have been produced before the court during\n\ninquiry or trial\n\n       (II)    The court must have been called upon to make such order as it\n\nthinks fit for the proper custody of such property pending conclusion of the\n\ninquiry or trial.(III)   Nature of property should be such that it is subject to speedy\n\nand natural decay or the court considers it is otherwise expedient to order\n\nproper custody, pending conclusion of the inquiry or trial\n\n       (IV)    The court should consider about the necessity of recording such\n\nevidence as it thinks fit depending on the facts in each case.(V)     Property can be disposed of either by sale or otherwise.21.     Learned Prosecutor relied onState of Maharashtra v.\n\nDr.Praful B.Desai((2003) 4 SCC 601). It is observed by the Supreme Court\n\nthatCr.P.C. is an ongoing statute. Taking note of the observations by a\n\nleading jurist Francis Bennion in his Commentaries on "StatutoryCrl.MC No.6554 of 2019                 13Interpretation" that it is presumed the Parliament intends the courts to\n\napply, to an ongoing Act, a construction that continuously updates its\n\nwordings to allow for changes since the Act was initially framed, the\n\nSupreme Court, in approval of said principle, held that in a number of\n\ndecisions the above said principle had been applied.22.    We are cognizant of the fact that it may be humanly impossible\n\nto visualise all probable situations under which the power vested in a\n\ncriminal court underSection 451Cr.P.C. could be sought to be invoked. For\n\nthe same reason, we think that there cannot be any enumeration of straight-\n\njacket formulae suiting all the situations. We, therefore, respectfully following\n\nthe guidelines inSunderbhai Ambalal Desai's case frame additional points\n\nin respect of disposal of money and jewellery by invokingSection 451Cr.P.C. We explicitly clarify that the additional points shown below are\n\nintended to supplement the guidelines inSunderbhai Ambalal Desai's case\n\nand not to supplant them.(i)    Normally, currency notes can be returned to a claimant, if, after\n\ntaking such evidence as the court deems fit in the facts and circumstances\n\nin each case, he could establish a prima facie right to get the money\n\nreleased. The court shall, in that event, take adequate measures to prevent\n\nthe evidence being lost, altered or destroyed.(ii)   If, in a given case, currency note/notes happen to be a material\n\npiece of evidence, for eg., a blood stained currency note involved in a\n\nmurder case, its release underSection 451Cr.P.C. may result in destructionCrl.MC No.6554 of 2019                  14of evidence. In such cases, courts should be cautious to see whether return\n\nof the currency note/notes would prejudicially affect trial of the case and it\n\nmay decline the request, if it is so.(iii)   In the case of jewellery, apart from the preparation of a proper\n\npanchanama of the articles, taking photographs, etc., mandated inSunderbhai Ambalal Desai's case, following aspects also may be\n\nconsidered depending on the facts in each case:(a)   If, in a case, the allegation is that one or two gold\n\nornaments have been stolen or snatched away from the defacto\n\ncomplainant, a criminal court invokingSection 451Cr.P.C. after taking\n\nnecessary evidence and following the directions inSunderbhai Ambalal\n\nDesai's case, may release the article underSection 451Cr.P.C. with the\n\nsafeguards mentioned inthe above decisionand also with a direction to\n\nproduce the same in the same condition as and when directed, especially\n\nwhen there is a rival claimant for the ornaments. If there is no rival claimant\n\nand no dispute is raised by the accused regarding the nature, shape, weight,\n\netc. of the ornaments in question, in appropriate cases, the court may even\n\nreturn the same without a condition to produce them in the same condition\n\non a later date.(b)   In a case involving theft of huge quantity of gold\n\nornaments from a jewellery store or from a jewellery manufacturing unit, the\n\ncourt should take extra precautions to see whether the claimant has\n\nestablished, by cogent evidence, a strong prima facie case to show hisCrl.MC No.6554 of 2019                15entitlement for staking the claim. In such cases, there ought to be records to\n\nsupport his claim. If there are sufficient documentary evidence showing his\n\nunquestionable entitlement to the articles, especially in a case where there\n\nis no rival claimant for the jewellery, we find no reason for imposing a\n\ncondition that the entire jewellery shall be produced in the same condition,\n\nas and when directed. If it is established by evidence that the ornaments\n\nclaimed by him are stock in trade in the jewellery store, no earthly purpose\n\nwill be served by returning them to the claimant by imposing such\n\nrestrictions. Hence, such a condition need not be imposed in all cases,\n\ndisregarding the factual situation in each case.We answer the reference accordingly.23.   Coming to the facts in this case, we find the challenge is against\n\nconditions 2 and 4 imposed by the trial Judge. Condition 2 is relating to\n\nfurnishing security in the form of bank guarantee for the value assessed by\n\nthe court below. We find no reason to interfere with that condition as the\n\njewellery items involved are of a considerable worth. Insofar as condition 4 is\n\nconcerned, the court below shall allow the claimant to adduce evidence to\n\nestablish a strong prima facie entitlement to the property. It may also\n\nascertain whether there is any rival claimant for the gold ornaments involved\n\nin the case. After considering the entire evidence on record, the trial court\n\nshall take a decision as to whether the petitioner should be directed to\n\nproduce the articles before the court in the same condition as and when\n\nrequired by the court. For arriving at a proper conclusion, the court belowCrl.MC No.6554 of 2019                 16shall consider whether the ornaments were the stock in trade in the jewellery\n\nstore belonging to the petitioner. The matter shall be disposed by the court\n\nbelow as expeditiously as possible, at any rate within a period of one month\n\nfrom the date of receipt of a copy of this order.A.HARIPRASAD,\n                                                       JUDGE.N.ANIL KUMAR,\n                                                       JUDGE.cksCrl.MC No.6554 of 2019            17APPENDIX\nPETITIONER'S/S EXHIBITS:ANNEXURE A1              TRUE COPY OF THE FIR AND FIS DATED\n                         28.7.2019 IN CRIME NO. 1880 OF 2019 OF\n                         PATHANAMTHITTA POLICE STATION.\n\nANNEXURE A2              TRUE COPY OF THE PETITION AND AFFIDAVIT\n                         FILED UNDER SECTION 451 OF THE CODE OF\n                         CRIMINAL PROCEDURE.\n\nANNEXURE A3              TRUE COPY OF THE ORDER DATED 2.8.2019 IN\n                         CRL.M P NO. 3898 OF 2019 ON THE FILE OF\n                         THE CJM PATHANAMTHITTA.