Binuk s/o Kutttanpanicker v. State of Kerala and Leela Bobby (De facto complainant) in Crime No. 1890/2022, Crl.M.C. No. 2625 of 2023

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV WEDNESDAY,THE2[ND]DAYOFAUGUST2023/11THSRAVANA,1945 CRL.MCNO.2625OF2023 ``` ``` AGAINSTTHECRL.M.P.NO.210/2023ONTHEFILESOFTHEJUDICIAL MAGISTRATEOFFIRSTCLASS,THIRUVALLA CRIMENO.1890/2022OFTHIRUVALLAPOLICESTATION PETITIONER/CLAIMPETITIONER: ``` ``` BINUK AGED54YEARS S/OKUTTANPANICKER,NO:17/256, VADAKKEKALLUVILAVEEDU,METHUNKALTALUK, KANYAKUMARIDISTRICT,TAMILNADUSTATE, – PIN629172 BYADVS. JOSEPHGEORGE P.A.REJIMON SAJEEVJOHNT. RESPONDENTS/STATE&DE-FACTOCOMPLAINANTIN CRIMENO.1890/2022: ``` ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, – HIGHCOURTOFKERALA,PIN682031 2LEELABOBBY AGED55YEARS W/OLATE.BOBBYABRAHAM,LAPEATHA, – SCSJUNCTION,THIRUVALLAP.O,PIN689101 BYADVS. SUSANTHSHAJI ALBINA.JOSEPH(K/1299/2020) V.V.SHAJI(S-1400) SRI.MCASHI,PP THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 02.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.2625 of 2023 2 ## **ORDER** The petitioner herein has approached this Court being aggrieved by the order dated 21.01.2023 in Crl.M.P. No.210/2023 on the files of the Judicial Magistrate of First Class, Thiruvalla. 2. The petitioner is a jeweller by profession. It appears that at the instance of the 2nd respondent, Crime No.1890/2022 of the Thiruvalla Police station was registered for the offences under Sections 457, 461 and 380 of the IPC. The crux of the allegations in the crime registered at the instance of the 2nd respondent is that in the wee hours of 21.10.2022, some person had broke into her house and committed theft of about 240 sovereigns of gold ornaments, a diamond ring worth about 4 lakhs and a sum of Rs.1,00,000/- by way of cash. 3. In the course of the investigation, the accused was traced out and was arrested on 24.10.2022. Based on the confession statement, about 176 grams of gold were seized from the Venkateshwara Jewellery, Vallavila run by the petitioner. It appears that some of the gold ornaments which were sold to the jewellery shop were melted and turned into gold ingots. 4. The 2nd respondent filed an application before the learned Crl.M.C No.2625 of 2023 3 Magistrate under Section 451 of the Cr.P.C. seeking interim custody of the gold ornaments and the currency notes. The learned Magistrate after hearing the contentions advanced, decided to grant interim custody of the gold as well as cash to the 2nd respondent. The aforesaid order was passed on 04.01.2023. 5. Thereafter, the petitioner approached the learned Magistrate and filed an application under Section 451 seeking interim custody of the currency notes. The learned Magistrate perused the recovery mahazar and noted that it was on the basis of the confession statement of the accused that a sum of Rs.8,95,000/- was recovered from his house. As the said cash was the value of the gold ornaments sold to the petitioner, the learned Magistrate proceeded to dismiss the application. 6. The learned counsel appearing for the petitioner submitted that the order passed by the learned Magistrate cannot be sustained. According to the learned counsel, the petitioner is a bonafide purchaser of the jewelry and if the order passed by the learned Magistrate is allowed to stand, it would only result in double enrichment of the party respondent. It is pointed out that about 176 sovereigns of gold Crl.M.C No.2625 of 2023 4 ornaments were seized, and proceeds by way of cash were also recovered from the accused. It is submitted by referring to Annexure A4 Mahazar that without considering the above relevant aspects, the learned Magistrate has passed the order. 7. The contention of the learned counsel was vehemently opposed by the learned counsel appearing for the party respondent. According to the learned counsel, what was seized from the jewelry shop of the petitioner was only 183.65 sovereigns of gold. The diamond ring worth about 4 lakhs and the cash of 1 lakh were not seized. According to the learned counsel, only interim custody of the cash was handed over, and that was subject to conditions. In that view of the matter, no interference is warranted. 8. The learned Public Prosecutor submitted that the petitioner had purchased the stolen gold from the accused, and in that view of the matter, his prayer for the release of the cash was rightly rejected by the learned Magistrate. It is also submitted that the learned Magistrate had considered all relevant facts while passing the impugned order. 9. I have considered the submissions advanced and have gone through the records. I find from the sequence of events that a Crl.M.C No.2625 of 2023 5 substantial amount of gold ornaments were stolen from the house of the 2nd respondent, and a portion of the same was recovered from the jewelry shop of the petitioner based on the confession statement of the alleged accused. Some amount of cash was seized from the accused, which allegedly is the proceeds of the crime. The learned Magistrate has allowed the application filed by the 2nd respondent and has granted interim custody to her. The question is whether the said order warrants any interference. ## 10. Section 451 of the Code reads 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.” ## 11. In **Sunderbhai Ambalal Desai v. State of Gujarat**[1] , the Supreme Court has considered the scope of invoking S.451 of the Code in respect of valuable articles, wherein it has been held as follows: “11. With regard to valuable articles, such as golden or silver > 1 [(2002) 10 SCC 283] Crl.M.C No.2625 of 2023 6 ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under S.451, Cr.P.C. at the earliest. 12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after: (1) 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, Cr.P.C. 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, Cr.P.C. to impose any other appropriate condition”. 12. At the stage of consideration of an application under Section 451 the Court has only to arrive at a prima facie conclusion as to the person who it thinks is fit for the proper custody of such property pending the conclusion of the inquiry or trial and nothing more. Such an exercise has been carried out by the learned Magistrate. It is also pertinent to bear in mind that the order intended by the provision is only of interim nature and Crl.M.C No.2625 of 2023 7 not final. 13. Having gone through the order passed by the learned Magistrate, I find that sufficient conditions were imposed by the learned Magistrate to ensure proper custody of the gold as well as the cash. In that view of the matter, I do not think that any interference is warranted. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS Crl.M.C No.2625 of 2023 8 ## **`APPENDIX OF CRL.MC 2625/2023`** ``` PETITIONERANNEXURES: ``` ``` AnnexureA-1TRUEPHOTOCOPYOFTHEPETITIONINCRL.M.P NO:210/2023OFTHEHON'BLECOURTOFJUDICIAL1ST CLASSMAGISTRATETHIRUVALLADATED03-01-2023 AnnexureA-2CERTIFIEDCOPYOFTHEFIRSTINFORMATIONREPORT DATED21-10-2022INCRIMENO:1890/2022OF THIRUVALLAPOLICESTATION AnnexureA-3CERTIFIEDCOPYOFTHELISTOFPROPERTYDATED 12-11-2022INCRIMENO:1890/2022OFTHIRUVALLA POLICESTATION AnnexureA-4CERTIFIEDCOPYOFSEIZUREMAHAZARDATED 25-10-2022INCRIMENO:1890/2022OFTHIRUVALLA POLICESTATION AnnexureA-5CERTIFIEDCOPYOFTHEPETITIONINCRL.M.PNO: 2226/2022OFTHEHON'BLECOURTOFJUDICIAL1ST CLASSMAGISTRATETHIRUVALLADATED27-12-2022 AnnexureA-6CERTIFIEDCOPYOFTHEORDERDATED24-11-2022IN CRL.M.PNO:1992/2022OFTHEHON'BLECOURTOF JUDICIAL1STCLASSMAGISTRATETHIRUVALLA AnnexureA-7CERTIFIEDCOPYOFTHEORDERDATED04-01-2023IN CRL.M.PNO:2226/2022OFTHEHON'BLECOURTOF JUDICIAL1STCLASSMAGISTRATETHIRUVALLA AnnexureA-8TRUEPHOTOCOPYOFTHECOUNTERAFFIDAVITDATED 18-01-2023FILEDBYTHE2NDRESPONDENTINCRL. M.PNO:210/2023OFTHEHON'BLECOURTJUDICIAL 1STCLASSMAGISTRATETHIRUVALLA ``` ``` AnnexureA-9CERTIFIEDCOPYOFTHEORDERDATED21-01-2023IN CRL.M.PNO:210/2023OFTHEHON'BLECOURTOF JUDICIAL1STCLASSMAGISTRATETHIRUVALLA ```