Abida Beevi A v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943 CRL.MC NO. 5764 OF 2020 ``` ``` AGAINST THE ORDER IN CRL.M.P. NO.3740 OF 2020 OF JUDICIAL FIRST CLASS MAGISTRATE COURT – I, VARKALA IN CRIME NO.32/CR/93 OF CBCID, THIRUVANANTHAPURAM ``` ``` (CRIME NO.331 OF 1992 OF VARKALA POLICE STATION) ``` ``` IN CC 508/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA ``` ## **`PETITIONER/PETITIONER:`** ``` ABIDA BEEVI A AGED 53 YEARS W/O.NOORUDHEEN, BUSHRA MANZIL, VARKALA, THIRUVANANTHAPURAM, 695 141 ``` ``` BY ADVS. ``` ``` ARUN BABU SRI.C.S.SUMESH ``` ## **`RESPONDENT/COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031`** - **`2 SUB INSPECTOR OF POLICE, VARKALA POLICE STATION, THIRUVANANTHAPURAM-695 141`** ``` BY ADV. SRI.SUDHEER GOPALAKRISHNAN ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5764 OF 2020 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the wife of late N.S. Nooruddin who was the 1[st] accused in Crime No.331/1992 of Varkala Police Station. The aforesaid case was registered against the husband of the petitioner and 5 other persons, alleging offences punishable under Sections 407, 411, 414 and 109 of Indian Penal Code based on a complaint submitted by one Ziyavudeen. This Crl.M.C is filed by the petitioner being aggrieved by Annexure A4 order passed by the Judicial First Class Magistrate Court – I, Varkala as per which the application submitted by her under Section 452 of Cr.P.C., seeking release of 5 Kilograms of gold which was seized from the possession of her husband and the 2[nd] accused while registering the crime against them, was dismissed. Though the aforesaid crime was initially registered by the Varkala Police, later the investigation of the aforesaid case was taken over by CBCID and it was re-numbered as Crime No.32/CR/93 and a final report thereon was submitted before the court. 2. The learned Magistrate took cognizance of the said offence as C.C. No.508/2003. The accused Nos.4, 5 and 6 have faced trial and it resulted in Annexure A1 judgment by which all of them were ``` CRL.MC NO. 5764 OF 2020 ``` ``` 3 ``` acquitted. The 3[rd] accused passed away during the course of trial and proceedings against him got abated which is recorded in Annexure A1 judgment. As far as the accused Nos.1 and 2 were concerned, since they were absconding, and hence the case against them were split up and re-filed as C.C. No.620/2008. It is discernible from the records that, subsequently, the 1[st] accused as well as the 2[nd] accused passed away and thereby all proceedings in C.C. No.620/2008 now stand abated. The net result of the above is that, no further trial can be conducted and the entire proceedings pursuant to the crime mentioned above came to an end. The petition under Section 452 Cr.P.C. by the petitioner herein, in her capacity as the legal heir of the deceased 1[st] accused, was submitted in such circumstances. The learned Magistrate observed that the husband of the petitioner failed to appear before the court and face trial which eventually lead to the abatement of proceedings, upon his death, and therefore, the question as to the legal possession of the article, by the deceased accused could not ascertained. The application was dimmissed mainly on that ground.. This Crl.M.C. is filed challenging the aforesaid order. 3. Heard Sri.Arun Babu, learned counsel for the petitioner ``` CRL.MC NO. 5764 OF 2020 ``` ``` 4 ``` and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. 4. Learned counsel for the petitioner contends that Annexure A4 order passed by the learned Magistrate is liable to be interfered with since the trial in respect of the aforesaid crime stands concluded consequent to Annexure A1 judgment and also on account of the abatement of the proceedings against other accused consequent to their deaths. Since the trial has been concluded, an application under Section 452 of Cr.P.C is maintainable and once such an application is submitted, the same has to be considered by following the procedure contemplated in the said provision. Learned counsel also brought my attention to Annexure A2 order passed by this Court in Crl.M.C. Nos.415/1994 and 814/93 wherein, interim custody of the gold was granted to the husband of the petitioner, subject to the compliance of certain conditions. Since the aforesaid conditions were not complied with by her husband, the articles remained in the custody of the court. 5. On the other hand, the learned Public Prosecutor opposes the said application. It is pointed out that the documents indicate that, apart from the husband of the petitioner, there were five other accused ``` CRL.MC NO. 5764 OF 2020 ``` ``` 5 ``` persons and it is also evident from Annexure A2 that a claim seeking interim custody was also raised by the de facto complainant as well. In Annexure A3 petition, none of the aforesaid persons or the legal representatives of the deceased accused were impleaded in the party array and therefore no interference is required in the order passed. Another irregularity pointed put by the learned Public Prosecutor is that the application was submitted in C.C. No.508/2003 in which Annexure A1 judgment was passed. But it is evident from the records that by pronouncing judgment in the said case, the prosecution against the 1[st] and 2[nd] accused were split up and refiled as C.C. No.620/2008. In such circumstances the application should have been filed in C.C. No.620/2008. 6. The question that arises is as to the entitlement of the petitioner with regard to the articles in question. The learned counsel relies upon the judgments rendered by the High Court of Karnataka in Crl.R.P No.2/2017 and Crl.R.P. No.982/2015. It is evident from the said judgments that the Hon’ble court dealt with a case with similar set of facts and ultimately it was held that, if there are no rival claims, the same can be released to the person from whose possession the same ``` CRL.MC NO. 5764 OF 2020 ``` ``` 6 ``` was seized, despite the fact that the prosecution against the accused stood abated. 7. When considering all the relevant materials, I am of the view that the reasoning adopted by the learned Magistrate is not legally sustainable. Going by the stipulation in Section 452 it can be seen that what is contemplated therein is the right of the person claiming the aritcles, upon conclusion of the trial. In this case, as against the accused Nos.4, 5 and 6, the trial has been concluded as evidenced by Annexure A1 judgment whereby all of them were acquitted. As regards the other accused i.e, A1, A2 and A3, the case against them stands abated consequent to their death. Therefore, for all practical purposes the trial has been concluded, as no further proceedings are possible. In such circumstances, no purpose would be served by keeping the article in the custody of the court and section 452 casts a duty upon the court to dispose of the properties seized, by adopting any of the modes specified in the said provision. In such circumstances there must be an order either to dispose of the property or to deliver the property to the persons who are entitled for the same. (Though one of the modes prescribed in section 452 is destruction of the articles, the same is not ``` CRL.MC NO. 5764 OF 2020 ``` ``` 7 ``` possible in this case, as the article being gold, which is very valuable). Another contention of learned public prosecutor is that, the petition can only be filed in C.C. No.620/2008, being the subsequent case. However, I am of the view that, as the conclusion of trial is concluded on account of order of acquittal as well as abatement due to the death of some of the accused, nothing precludes the court in entertaining an application in any of the proceedings. 8. In such circumstances, Annexure A4 order is to be set aside. 9. However, it is discernible from the records that, the discrepancies as pointed out by the learned Public Prosecutor as to the non impleadment of necessary parties are evident. Even though the article was seized from the possession of the 1[st] and 2[nd] accused, the other accused persons and also the de facto complainant may have claims in respect of the said property. The Honourable Supreme Court, considered the question of scope and manner of adjudication of claims under section 452 in **Bharat Sanchar Limited v. Nigam Suryanarayanan and Another [(2020) 12 SCC 637].** In the said decision, after referring to the decision rendered in **N.Madhavan v.** ``` CRL.MC NO. 5764 OF 2020 ``` ``` 8 ``` ## **State of Kerala [(1979) 4 SCC 1],** it was observed as follows: _“We are unable to subscribe to the submission which has been urged on behalf of the first respondent that when it makes an order under S.452, the Court is merely required to determine the source from which the property was seized. Indeed, if this construction were to be placed, it would mean that the right of a person who claims title to the property would be subordinate to the claim of a person from whose possession the property was seized. A claim of title to the goods which have been seized is a relevant consideration while passing an order under S.452. Where there are conflicting claims of entitlement to the property, the Magistrate may deal with them or, where it is found that the rival claims need to be resolved after an evidentiary trial, relegate the conflicting claimants to prove their rights and entitlements before a competent Court.”_ Thus, it is evident that, if there are rival claims that has to be considered by the court and when such rival claims need to be resolved on evidence, the parties shall be relegated to civil court for proving their rights. 10. In such circumstances, the decision on an application under Section 452 can be taken only after giving notice to all the parties concerned. Therefore, I am of the view that, the petitioner herein is to be granted an opportunity to implead all the necessary parties who were parties to the prosecution as accused or defacto complainant or their legal representatives, in the petition and the adjudication is to be done afresh after issuing notice to all of them. ``` CRL.MC NO. 5764 OF 2020 ``` ``` 9 ``` In such circumstances, Annexure A4 order passed by the Judicial First Class Magistrate Court, Varkala in Crl.M.P 3740/2020 in Crime No.32/CR/93 of CBCID Crime Branch, Thiruvananthapuram, (Crime 331/1992 of Varkala Police Station) is hereby set aside, and the matter is remanded back to the learned Magistrate to enable the petitioner to take necessary steps to implead all the affected parties. It is made clear that, in case there are rival claims which requires detailed inquiry in the matter, the parties shall be relegated to civil court for obtaining appropriate reliefs for establishing their title. In case no rival claims or serious dispute as to the title/rights over the article, the decision on the release of the same can be taken by the learned Magistrate by taking into relevant aspects of the case and upon imposing such condition as the court may deem fit or without any conditions, if deem it appropriate. This Crl.M.C. is disposed of as above. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` SCS ``` CRL.MC NO. 5764 OF 2020 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 5764/2020`** ``` PETITIONER ANNEXURES ANNEXURE A1THE TRUE COPY OF THE JUDGMENT DATED 21.07.2008 IN CC NO. 508/2003 OF THE JFMC-I, VARKALA. ANNEXURE A2THE TRUE COPY OF THE ORDER DATED 28.03.1994 IN CRL.M.C. 814/1993 OF THIS HON'BLE COURT. ANNEXURE A3THE TRUE COPY OF THE CRL.M.P.3740/2020 DATED 14.09.2020 FILED BEFORE JFMC-I VARKALA. ANNEXURE A4THE CERTIFIED COPY OF ORDER DATED 14.09.2020 IN CRL.M.P. 3740/2020 IN C.C.508/2003 OF JFMC-I VARKALA. ```