[Cites 8, Cited by 0]
Kerala High Court
Thampi vs State Of Kerala on 18 February, 2026
Author: C.S.Dias
Bench: C.S.Dias
2026:KER:14442
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 18TH DAY OF FEBRUARY 2026 / 29TH MAGHA, 1947
CRL.MC NO. 1081 OF 2024
CRIME NO.166/1994 OF Thenmala Police Station, Kollam
AGAINST THE ORDER/JUDGMENT DATED IN CMP 5441/2011 IN CMP
NO.3908 OF 2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II(FOREST
OFFENCES),PUNALUR ARISING OUT OF THE ORDER/JUDGMENT DATED
18.09.2023 IN CMP 5888/2023 IN LP NO.36 OF 2011 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II(FOREST OFFENCES),PUNALUR
PETITIONER/PETITIONER IN CMP 5441/2011 AND CMP 3908/2015 AND THE
COUNTER PETITIONER IN CIMP 5888/2023:
THAMPI,
AGED 63 YEARS
S/O.VELUPILLAI, T.C.41/325(1),MANAKKADU VILLAGE,
THIRUVANANTHAPURAM TALUK, FROM THAMPI JEWELLERY,
T.C.37/260, APPU NIVAS, THIRUVANANTHAPURAM DISTRICT,
PIN - 695009
BY ADV SHRI.GEORGE SEBASTIAN
RESPONDENTS/STATE AND COUNTER PETITIONERS IN CMP 5441/82011 AND
CMP 3908/2015 AND THE PETITIONERS IN CMP NO. 5888/2025:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 SALEENA.,
W/O NISSAM, KULANGARA VADAKKETHIL,
NEELESWARAM, KOTTARAKKARA,
KOLLAM, PIN - 691506
3 NISSAM,
S/O. KHADAR KUNJU, KULANGARA ADAKKETHIL,
NEELESWARAM, KOTTARAKKARA,
KOLLAM, PIN - 691506
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BY ADVS.
SRI.A.RAJASIMHAN
KUM.VYKHARI.K.U
SHRI.HARIS S.
OTHER PRESENT:
SENIOR PUBLIC PROSECUTOR- SRI C S HRITHWIK
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
18.02.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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Dated this the 18th day of February, 2026
ORDER
The petitioner was cited as the fourth prosecution
witness in C.C. No. 242/2020 on the file of the Court of
the Judicial First Class Magistrate-II (Forest Offences),
Punalur ('Trial Court', for short), which was registered
against five accused persons for allegedly committing
the offences punishable under Sections 457, 380 and 461
read with Section 34 of the Indian Penal Code.
2. The gravamen of the prosecution case is that;
On 09.08.1994, the accused persons had
trespassed into the house of one Mohammedali (CW1)
and committed theft of his gold ornaments worth Rs.
27,000/-, currency notes, two wristwatches and other
properties. The prosecution further alleged that the first
accused had sold a portion of the gold ornaments to the
petitioner, who melted the same and made them to four
gold ingots. The Investigating Officer recovered 49.500
grams of the gold ingots from the petitioner's jewellery
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shop.
3. Claiming the interim custody of four gold
ingots weighing 49.500 grams, the petitioner filed an
application before the Trial Court. However, by
Annexure C order, the said application was dismissed.
Subsequently, the petitioner had filed another
application, seeking the interim custody of the gold
ingots, which was also dismissed by Annexure E order.
Challenging Annexure E order, the petitioner preferred a
revision petition before the Court of Sessions, Kollam,
which was also dismissed by Annexure F order. Assailing
Annexures C and E orders, the petitioner filed Crl.M.C
No. 07/2021 before this Court, which was allowed by
Annexure G order, directing the Trial Court to reconsider
the matter afresh after hearing all parties. Consequent to
the remand, the Trial Court issued notice to the
respondents 2 and 3, who appeared and filed their
objections and also filed applications claiming the
interim custody of the above gold. By Annexure J order,
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the Trial Court dismissed the petitioner's application but
has allowed the application filed by the respondents 2
and 3. Annexure J order is ex-facie erroneous and
unsustainable in law. The Trial Court has failed to
consider the fact that there is no material to prove that
the gold belongs to the respondents 2 and 3. Instead, the
gold was seized from the petitioner's jewellery. Hence,
Annexure J order may be set aside.
4. I have heard the learned counsel for the
petitioner, the learned Public Prosecutor and the learned
counsel appearing for the respondents 2 and 3.
5. On a perusal of the materials on record, it is
seen that the Trial Court had split up the case against
the accused 1 to 3 and 5 and proceeded with the trial as
against the fourth accused. Later, by Annexure A
judgment dated 28.10.2010, the Trial Court found that
the prosecution had miserably failed to prove beyond
reasonable doubt that the first accused had committed
the above offence and had acquitted him. It is after
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Annexure A judgment was passed, that the petitioner
filed an application under Section 451 of the Code of
Criminal Procedure (Cr.PC), seeking interim custody of
the gold.
6. In the above context, it is apposite to refer to
Sections 451 and 452 of the CR.P.C., which read as
follows:
"451. Order for custody and disposal of
property pending trial in certain cases.
When any property is produced before any
Criminal Court during an inquiry or trial, the Court may
make such order as it thinks fit for the proper custody of
such property pending the conclusion of the inquiry or
trial, and, if the property is subject to speedy and natural
decay, or if it is otherwise expedient so to do, the Court
may, after recording such evidence as it thinks necessary,
order it to be sold or otherwise disposed of.
Explanation.For the purposes of this section,
"property" includes-
(a) property of any kind or document which is
produced before the Court or which is in its custody.
(b) any property regarding which an offence
appears to have been committed or which appears to have
been used for the commission of any offence.
452. Order for disposal of property at
conclusion of trial.-
(1) When an inquiry or trial in any Criminal
Court is concluded, the Court may make such order as it
thinks fit for the disposal, by destruction, confiscation or
delivery to any person claiming to be entitled to
possession thereof or otherwise, of any property or
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document produced before it or in its custody, or
regarding which any offence appears to have been
committed, or which has been used for the commission of
any offence.
(2) An order may be made under sub-section (1)
for the delivery of any property to any person claiming to
be entitled to the possession thereof, without any
condition or on condition that he executes a bond with or
without sureties, to the satisfaction of the Court,
engaging to restore such property to the Court if the
order made under sub-section (1) is modified or set aside
on appeal or revision.
(3) A Court of Session may, instead of itself
making an order under sub-section (1), direct the
property to be delivered to the Chief Judicial Magistrate,
who shall thereupon deal with it in the manner provided
in sections 457, 458 and 459.
(4) Except where the properly is livestock or is
subject to speedy and natural decay, or where a bond has
been executed in pursuance of sub-section (2), an order
made under sub-section (1) shall not be carried out for
two months, or when an appeal is presented, until such
appeal has been disposed of.
(5) In this section, the term "property" includes,
in the case of properly regarding which an offence
appears to have been committed, not only such property
as has been originally in the possession or under the
control of any party, but also any property into or for
which the same may have been converted or exchanged,
and anything acquired by such conversion or exchange,
whether immediately or otherwise."
7. A co-joint reading of the above provisions
shows that an application can be filed under Section 451
of the Cr.P.C. for the interim custody of a property
during the pendency of any enquiry or trial. On the other
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hand, Section 452 comes into operation after the
conclusion of the trial.
8. In the instant case, indisputably, the first
accused was acquitted by the Trial Court. The materials
on record reveal that in Annexure A judgment was
rendered after the examination of PWs 1 to 11, marking
P1 to P8 and the MO I to MO IV series, which is also the
gold in question. It is without looking into the findings in
the judgment and the material on record, that the
petitioner had filed an application under Section 451 of
the Cr.P.C., that is, after the conclusion of the trial. This,
according to me, is unsustainable in law because the trial
had concluded by them. After that, only Section 452 of
the Cr.P.C., is applicable. Instead, the Trial Court
rejected the petitioner's first and second applications,
which was confirmed by the Court of Sessions, Kollam.
Subsequently, by Annexure G order, the Trial Court was
directed to reconsider the matter and pass a fresh order
in accordance with the law. It is after the remand that
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the respondents 2 and 3 also filed applications staking a
claim over the gold, which was considered by the Trial
Court, and the impugned common order was passed.
8. In light of the fact that the applications were
filed after the conclusion of the trial, I am of the definite
view that the application under Section 451 of the
Cr.P.C. was not maintainable. Thus, I am satisfied that
this is a fit case to exercise the inherent powers of this
Court under Section 482 of the Cr.P.C., and direct the
Trial Court to reconsider the applications filed by the
petitioner and the respondents 2 and 3, keeping in mind
the observations made above.
9. In the aforesaid circumstances, I allow the
Crl.M.C. in the following manner:
(i) Annexure J order is set aside.
(ii) The Trial Court is directed to
reconsider the applications filed by the petitioner,
in accordance with the law and as observed
above, and the respondents 2 and 3, after
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affording the petitioner and the respondents 2
and 3 an opportunity of being heard, and
untrammelled by any observations made in
Annexure J order.
Sd/-
C.S.DIAS, JUDGE
mtk
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APPENDIX OF CRL.MC NO. 1081 OF 2024
PETITIONER ANNEXURES
Annexure A A TRUE COPY OF THE JUDGMENT DATED
28.10.2010 IN C.C.NO.73/2001 OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT II
(FOREST OFFENCES), PUNALUR
Annexure B A TRUE COPY OF THE PROPERTY LIST DATED
20.01.1995 IN CRIME NO.166/1994 OF
THENMALA POLICE STATION
Annexure C A TRUE COPY OF THE ORDER DATED 08.08.2011
IN C.M.P.NO.5441/2011 IN C.C.NO.242/2010
OF THE JUDICIAL FIRST CLASS MAGISTRATE
COURT II (FOREST OFFENCES), PUNALUR
Annexure D A TRUE COPY OF THE REPORT DATED
30.06.2015 SUBMITTED BY THE STATION HOUSE
OFFICER, THENMALA
Annexure E A TRUE COPY OF THE ORDER DATED 07.07.2015
IN C.M.P.NO.3908/2015 OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT II (FOREST
OFFENCES), PUNALUR
Annexure F A TRUE COPY OF THE ORDER DATED 14.02.2018
IN (CRL.M.P.NO.656/2017 IN UNNUMBERED
CRL.R.P. OF THE SESSIONS COURT, KOLLAM)
Annexure G A TRUE COPY OF THE ORDER DATED 26.06.2023
Annexure H A TRUE COPY OF THE OBJECTION DATED
01.09.2023 FILED BY RESPONDENTS 2 AND 3
IN CMP NO. 5441/2021 IN LP 36/2011 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT II
(FOREST OFFENCES), PUNALUR
Annexure I A TRUE COPY OF THE APPLICATION DATED NIL
FILED BY RESPONDENTS 2 AND 3 HEREIN (CMP
5888/2023 IN L.P.NO.36/2011 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT II (FOREST
OFFENCES), PUNALUR)
Annexure J A CERTIFIED COPY OF THE COMMON ORDER
DATED 18.09.2023 IN CMP
IN L.P.NO.36/2011 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT II (FOREST OFFENCES),
PUNALUR
Annexure K A TRUE COPY OF THE IDENTITY CARD ISSUED
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TO THE PETITIONER'S WIFE FROM REGIONAL
CANCER CENTER (RCC) THIRUVANANTHAPURAM
Annexure L A TRUE COPY OF THE DISCHARGE SUMMARY
DATED 08.12.2023 ISSUED FROM RCC
THIRUVANANTHAPURAM IN RESPECT TO THE
PETITIONERS WIFE
Annexure M A TRUE COPY OF THE LIST OF PROPERTY DATED
21.01.1995 SUBMITTED BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT II (FOREST
OFFENCES), PUNALUR
