Dilip v. State of Kerala and Sub Inspector of Police, Pala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **SATURDAY, THE 23RD DAY OF MARCH 2013/2ND CHAITHRA 1935** ## **Crl.MC.No. 1298 of 2013 ()** **---------------------------** **AGAINST THE ORDER IN CMP.9497/2012 of J.M.F.C.,PALA DATED 10-12-2012** ## **PETITIONER/3RD ACCUSED:** **----------------------------------** **DILIP, AGED 35 YEARS S/O.ELSY RESIDING AT KUNNEL HOUSE, NECHIPUZHOOR KARA, VALLIOCHIRA VILLAGE MEENACHIL TALUK, KOTTAYAM DISTRICT** ## **BY ADV. SRI.T.MADHU** ## **RESPONDENTS/STATE AND RESPONDENT:** **--------------------------------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA , ERNAKULAM 682 031** ## **2. THE SUB INNSPECTOR OF POLICE** **PALA POLICE STATION KOTTAYAM DISTRICT REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682 031** ## **BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 1298 of 2013 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES: -------------------------------------** **ANNEXURE A1 THE TRUE COPY OF THE PETITION IN C.M.P. NO. 9497 ON THE FILE OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT-1 PALA** **ANNEXURE A2 THE TRUE CERTIFIED COPY OF THE ORDER DATED 10-12-2012 IN C.M.- NO 9497/2012 ON THE FILE OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT-1 PALA** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** **//TRUE COPY//** **P.A. TO JUDGE.** **dlk** **“C.R.”** ## **C.T.RAVIKUMAR, J.** ---------------------------Crl.M.C.No.1298 of 2013 ---------------------------Dated 23[rd] March, 2013 ## **ORDER** The petitioner herein is the third accused in Crime No.1533 of 2012 of Pala Police Station registered alleging commission of offences punishable under Sections 120(B), 115, 118, 307 and 388 read with Section 34 of the Indian Penal Code. Even as per paragraph 2 of this petition the gist of the allegation is that the second accused entered into a criminal conspiracy with the first accused to commit murder of one Sreenivasan as the said Sreenivasan was on inimical terms with the second accused. According to the prosecution, it was in furtherance of their common intention to commit murder of Sreenivasan that the second accused hired a car and handed it over to the first accused. The first accused allegedly conspired with the 3[rd] and 4[th] accused thereafter and extorted a sum of Rs.3,00,000/- from the second accused by threatening him that they would inform the act of attempt to commit murder of Sreenivasan to police. Evidently, as part of the investigation in that crime the mobile phone belonging to the petitioner was seized under a seizure mahazar and the same was produced before the Court of Judicial First Class Magistrate-I, Pala as thondi article No.T396/2012 in Crime No.1533 of 2012 of Pala Police Station. Subsequently, the Crl.M.C.1298/2013 2 petitioner herein filed C.M.P.No.9497 of 2012 viz., Annexure-A1 before that court and by Annexure-A2 the said petition was dismissed. It is challenging Annexure-A2 that this petition has been filed. 2. I have heard the learned counsel for the petitioner as also the learned Public Prosecutor. 3. The contention of the petitioner is that Annexure-A1 application which is filed under Section 451 Cr.P.C. was not properly considered by the learned Magistrate and as such Annexure-A2 order whereby Annexure-A1 was dismissed is liable to be interfered with. It is further contended that the petitioner is entitled to get the interim custody of the mobile phone which is thondi article No.T396/2012 in Crime No.1533 of 2012 of Pala Police Station. The learned Public Prosecutor submitted that it is believed that certain informations which may be very relevant and crucial for the purpose of Crime No.1533 of 2012 relating conspiracy to commit murder of Sreenivasan got encoded in the mobile phone viz., thondi article No.T396/2012 and the question as to whether the phone in question was used for the purpose of extracting money from the second accused by threatening him to convey the information regarding the aforesaid act to others and if so, in what manner and to what extent, are matters which might obtain from Crl.M.C.1298/2013 3 decoding the informations in it. In the said circumstances, the learned Public Prosecutor contended that it cannot be said that the granting of interim custody of the said mobile phone would not cause prejudice to the prosecution. Annexure-A2 impugned order would reveal that after considering certain aspects the learned Magistrate arrived at the conclusion that the mobile phone recovered from the petitioner herein is also a property which is involved in the crime and therefore it cannot be released to the custody of the petitioner. 4. The learned counsel for the petitioner submitted that Annexure-A2 order is liable to be interfered with in the light of the decision of the Hon'ble Apex Court in **Sunderbhai Ambalal Desai** v. **State of Gujarat** ( **2003 KHC 535** ). In that case, certain golden ornaments were seized and kept in police custody pending trial. The trial court as also the High Court rejected the application made by the petitioner therein for getting interim custody of the said articles. The Hon'ble Apex Court considered the sustainability of the said orders in terms of the provisions under Sections 451 and 457 Cr.P.C. True that it was held by the Hon'ble Apex Court that Section 451 Cr.P.C. empowers the court to pass appropriate orders with regard to such properties seized by police. The question of proper custody of the seized articles and the guidelines with respect to the same have been discussed and laid Crl.M.C.1298/2013 4 down in the said decision. It was held by the Hon'ble Apex Court that the powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. In the said decision the Hon'ble Apex Court further held that the object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. The arguments advanced on behalf of the petitioner therein and the observations of the Hon'ble Apex Court are evident from paragraph 11 of the said decision. In paragraph 11 of the said decision it is observed thus:- “11. With regard to valuable articles, such as golden or silver 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.” 5. A scanning of the said decision would undoubtedly reveal that though the Hon'ble Apex Court laid down the guidelines in the matter of disposal of property pending trial in respect of an article seized by the police under Section 451 or 457 Cr.P.C., it is very much evident from the observations of the Hon'ble Apex Court in the very same Crl.M.C.1298/2013 5 decision that what was held is that such articles ought not to be retained in the custody of the Court or of Police for any time longer than what is absolutely necessary. The corollary is that it will be within the scope of power of the court or police to retain such seized articles in custody till such time it is absolutely necessary. Therefore, ultimately, the question whether the retention of a seized article is absolutely necessary or not and whether the interim custody of the articles in question could be given to an applicant are matters to be decided depending upon the facts and circumstances of each case. In that view of the matter, the petitioner cannot be heard to contend relying on the decision of the Hon'ble Apex Court in **Sunderbhai Ambalal Desai's** case (supra) that on the mere asking he should be given the custody of the thondi article irrespective of and unmindful of, any consequences. I am of the considered view that the contention of the petitioner is nothing but a misinterpretation of the decision of the Hon'ble Supreme Court in **Sunderbhai Ambalal Desai's** case (supra). Considering the allegations in Crime No.1533 of 2012 of Pala Police Station, I am also of the view that granting interim custody of the said mobile phone, believed to be carrying relevant and crucial information regarding a very serious offence, at this stage, will definitely cause prejudice to the prosecution and as such the petitioner is not entitled to get the interim custody of the mobile phone in question. The possibility of destroying the mobile phone Crl.M.C.1298/2013 6 or deleting the relevant informations also cannot be ruled out. At any rate, in view of the nature of the allegations in Crime No.1533 of 2012 of Pala Police Station the interim custody of the mobile phone in question cannot be directed to be given to the petitioner. In the said circumstances, I do not find any reason to interfere with Annexure-A2 order passed by the learned Magistrate in C.M.P.No.9497 of 2012 in Crime No.1533 of 2012. The allegations in the crime and their serious nature persuade me to hold that the apprehension of the prosecution cannot be said to be unfounded and that the retention of the mobile phone by the court is absolutely necessary in the interest of justice. The prayer of the petitioner made in Annexure-A1 cannot be granted, at all. In that view of the matter there is no scope for remitting the matter for a fresh disposal, as well. Resultantly, this Crl.M.C. is liable to fail and accordingly, it is dismissed. Sd/C.T.RAVIKUMAR Judge TKS