Kerala High Court
R.Murukan vs State Of Kerala on 4 April, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA,
1946
CRL.MC NO. 345 OF 2024
CRIME NO.91/2023 OF ARUVIKKARA POLICE STATION,
THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT DATED 21.12.2023 IN CC
NO.493 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
II,NEDUMANGAD
PETITIONER/DEFACTO COMPLAINANT :
R.MURUKAN, AGED 52 YEARS
S/O.RAMAN PILLAI, UTHRADAM VEEDU,
CHERIYAKONNI, ARUVIKKARA VILLAGE,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 564.
BY ADVS.
K.SIJU
ANJANA KANNATH
RESPONDENT/STATE & PW18 & PW20 :
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM- 682 031.
2 STATION HOUSE OFFICER
ARUVIKKARA POLICE STATION,
THIRUVANANTHAPURAM DISTRICT- 695 564.
3 SIJO JOSE, S/O JOSE, PROPRIETOR,
ANGEL JEWELLERY, ERATTAYAR P.O,
IDUKKI DISTRICT, FROM EZHUKUMVAYAL MAKKAL
VEETTIL, EZHUKUMVAYAL P.O, KALKOONTHAL
VILLAGE, UDUMPANCHOLA TALUK,
IDUKKI DISTRICT, PIN - 685554
4 ARUN K.B., S/O BINOY,
KAILATHU VEEDU, KOOTTAR DESOM, KARUNAPURAM
P.O, UDUMPANCHOLA TALUK, IDUKKI DISTRICT -
685 554
BY ADV LIJI J VADAKKEDOM
SRI.RANJITH T.R., PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 04.04.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC 345/2024
2
BECHU KURIAN THOMAS, J
......................................................
Crl.M.C.No.345 of 2024
...................................................
Dated this the 4th day of April, 2024
ORDER
Petitioner challenges the order dated 21-12-2023 rejecting his
applications for interim custody of gold ornaments and other
materials seized in Crime No.91/2023 of Aruvikkara police station.
2. The petitioner is the de facto complainant in Crime No.91/2023 of
Aruvikkara Police Station registered on 17.01.2023, alleging theft
of gold ornaments and other articles from his house. Pursuant to
the complaint, some of the gold ornaments were recovered from a
jewellery shop owned by CW18. After the final report was filed,
cognizance was taken as C.C No. 493/2023 by the Judicial First
Class Magistrate Court-II, Nedumangad. In the meantime,
petitioner filed Crl.M.P No.4952/2023, Crl.M.P No.5549/2023 and
Crl.M.P No. 5550/2023 seeking interim custody of the gold
ornaments, gold ingots and other articles seized by the police in
the above crime.
3. The above referred applications were initially dismissed by the
learned Magistrate after observing that there were rival claimants.
However, when the said order was challenged before this Court
in Crl.M.C.5747/2023, it was noticed that the finding of the trial
court that there were rival claimants was incorrect, as both
claimants were claiming different articles. With the above finding,
this Court directed a re-consideration of the applications.
4. Subsequently, the learned Magistrate re-considered the matter and
again dismissed the applications, stating that the properties are
essential for the smooth conduct of the trial.
5. I have heard Smt.Anjana Kannath, the learned counsel for the
petitioner and Sri.Ranjith T.R., the learned Public Prosecutor as
well.
6. In the decision in Sunderbhai Ambalal Desai v. State of Gujarat
(2002) 10 SCC 283, the Supreme Court had observed that the
articles, especially those of value, ought not to be retained either
by the police or in court custody, unless they are essential for the
conduct of the trial. With respect to the gold ornaments, the
Supreme Court had observed that the seized articles be handed
over to the complainant as follows:-
"(1) After preparing detailed proper panchnama of
such articles;
(2) taking photographs of such articles and a bond
that such articles would be produced if required at
the time of trial; and
(3) after taking proper security.
13. For this purpose, the Court may follow the
procedure of recording such evidence as it thinks
necessary, as provided under S.451, CrPC. The bond
and security should be taken so as to prevent the
evidence being lost, altered or destroyed. The Court
should see that photographs of such articles are
attested or countersigned by the complainant,
accused as well as by the person to whom the
custody is handed over. Still however, it would be
the function of the Court under S.451, CrPC to
impose any other appropriate condition.
7. In a Division Bench judgment of this Court in Suresh Serve V v.
State of Kerala [(2020) 3 KLT 395] few additional conditions
were stipulated relating to gold ornaments involved in a crime.
Those conditions are as follows:
"(iii) In the case of jewellery, apart from the
preparation of a proper panchanama of the articles,
taking photographs, etc., mandated in Sunderbhai
Ambalal Desai's case, the following aspects also may
be considered depending on the facts in each case:
(a) If, in a case, the allegation is that one or two
gold ornaments have been stolen or snatched away
from the de facto complainant, a Criminal Court
invoking S.451 Cr.P.C. after taking necessary
evidence and following the directions in Sunderbhai
Ambalal Desai's case, may release the article under
S.451 Cr.P.C. with the safeguards mentioned in the
above decision and also with a direction to produce
the same in the same condition as and when
directed, especially when there is a rival claimant for
the ornaments. If there is no rival claimant and no
dispute is raised by the accused regarding the nature,
shape, weight, etc. of the ornaments in question, in
appropriate cases, the Court may even return the
same without a condition to produce them in the
same condition on a later date.
(b) In a case involving theft of huge quantity of gold
ornaments from a jewellery store or from a jewellery
manufacturing unit, the Court should take extra
precautions to see whether the claimant has
established, by cogent evidence, a strong prima facie
case to show his entitlement for staking the claim. In
such cases, there ought to be records to support his
claim. If there are sufficient documentary evidence
showing his unquestionable entitlement to the
articles, especially in a case where there is no rival
claimant for the jewellery, we find no reason for
imposing a condition that the entire jewellery shall
be produced in the same condition, as and when
directed. If it is established by evidence that the
ornaments claimed by him are stock in trade in the
jewellery store, no earthly purpose will be served by
returning them to the claimant by imposing such
restrictions. Hence, such a condition need not be
imposed in all cases, disregarding the factual
situation in each case."
8. It is evident that the gold ornaments involved in the case are
allegedly stolen from petitioner's house, since they were
recovered pursuant to the complaint filed by the petitioner.
Retaining the said properties either in the custody of the court or
in the custody of the police would not be conducive, especially
since they are highly valuable and no purpose would be achieved.
In such circumstances, it is only proper to hand over those
properties to the person entitled to the possession thereof.
9. Therefore, the impugned order dated 21.12.2023, in Crl.M.P No.
4952/2023, Crl.M.P No.5549/2023 and Crl.M.P No.5550/2023 on
the files of the Judicial First Class Magistrate Court-II,
Nedumangad, are set aside, and the articles sought for by the
petitioner in Annexure-A3 petition shall be released to the
petitioner on interim custody on the following conditions:-
i. A detailed report of the articles shall be prepared;
ii. Photographs of such articles shall be prepared which
shall be signed by the petitioner and the
Investigating Officer.
iii. Petitioner shall produce the articles as and when
required by the Court and he shall not sell or
transfer the gold ornaments until conclusion of the
trial.
This criminal miscellaneous case is allowed as above.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/04/04/2024
PETITIONER ANNEXURES
ANNEXURE A1 THE COPY OF FIR IN CRIME NO.91/2023 OF
ARUVIKKARA POLICE STATION DATED
17.1.2023.
ANNEXURE A2 THE COPY OF FINAL REPORT IN CRIME
NO.91/2023 OF ARUVIKKARA POLICE STATION
DATED 1.4.2023.
ANNEXURE A3 THE COPY OF PETITION IN CMP NO.4952/2023
DATED 10.4.2023 FILED IN CRIME NO.91/2023
ON THE FILE OF JFMC-II, NEDUMANGAD.
ANNEXURE A3(A) THE COPY OF PETITION IN CMP NO.5549/2023
DATED 24.5.2023 FILED IN CRIME
NO.91/2023.
ANNEXURE A3(B) THE COPY OF PETITION IN CMP NO.5550/2023
DATED 24.5.2023 IN CRIME NO.91/2023.
ANNEXURE A4 THE COPY OF OBJECTION DATED 9.5.2023 TO
ANNEXURE A3 SUBMITTED BY THE 2ND
RESPONDENT.
ANNEXURE A4(A) THE COPY OF OBJECTION DATED 31.5.2023 TO
ANNEXURE A3(A) SUBMITTED BY THE 2ND
RESPONDENT.
ANNEXURE A4(B) THE COPY OF OBJECTION DATED 31.5.2023 TO
ANNEXURE A3(B) SUBMITTED BY THE 2ND
RESPONDENT.
ANNEXURE A5 THE COPY OF ORDER DATED 20.6.2023 IN CMP
NO.4952/2023 IN CC NO.493/2023 ON THE
FILE OF JFMC-II, NEDUMANGAD ALONG WITH
TYPED COPY.
ANNEXURE A5(A) THE COPY OF ORDER DATED 20.6.2023 IN CMP
NO.5549/2023 IN CC NO.493/2023 ON THE
FILE OF JFMC-II, NEDUMANGAD ALONG WITH
TYPED COPY.
ANNEXURE A5(B) THE COPY OF ORDER DATED 20.6.2023 IN CMP
NO. 5550/2023 IN CC NO.493/2023 ON THE
FILE OF JFMC-II, NEDUMANGAD ALONG WITH
TYPED COPY.
ANNEXURE A6 THE COPY OF COMMON ORDER DATED 6.11.2023
IN CRL.M.C NO.7647/23 AND 5747/23.
ANNEXURE A7 THE CERTIFIED COPY OF IMPUGNED ORDER
PASSED BY THE JFMC-II, NEDUMANGAD IN CMP
NO.4952/23 BY ORDER DATED 21.12.2023.
ANNEXURE A7(A) THE CERTIFIED COPY OF IMPUGNED ORDER
PASSED BY THE JFMC-II, NEDUMANGAD IN CMP
NO. 5549/23 BY ORDER DATED 21.12.2023.
ANNEXURE A7(B) THE CERTIFIED COPY OF IMPUGNED ORDER
PASSED BY THE JFMC-II, NEDUMANGAD IN CMP
NO. 5550/23 BY ORDER DATED 21.12.2023.
TRUE COPY
