Dr. ABDULLA SAIF HINDI v. K.P. MUHAMMEDALI and STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 8TH DAY OF JANUARY 2018 / 18TH POUSHA, 1939** **Crl.Rev.Pet.No. 1623 of 2016** **AGAINST THE ORDER/JUDGMENT IN CRA 375/2014 of D.C. & SESSIONS COURT,THALASSERY AGAINST THE ORDER/JUDGMENT IN CMP 6773/2008 of J.M.F.C.,TALIPARAMBA** **REVISION PETITIONER(S)/APPELLANT/APPLICANT IN CMP NO.6773/2008** **DR. ABDULLA SAIF HINDI, AGED 62 YEARS, S/O.H.M. ALI ABDULLA, MINISTRY OF INTERIOR, DOHA,HOLDER OF I.D NO. 25263400283 ISSUED AT DOHA.** **BY ADVS.SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN** ## **RESPONDENT(S)/RESPONDENT:** **1. K.P. MUHAMMEDALI, S/O. ABDUL KHADER, KOOTTUMUGHAM, SREEKANDAPURAM-670631, KANNUR DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682 031** **R1 BY ADV. SRI.M.V.AMARESAN R1 BY ADV. SRI.PHILJO VARUGHESE PHILIPS R BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-10-2017, THE COURT ON 8/1/2018 PASSED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.R.P.No.1623 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of January, 2018 ## **O R D E R** The revision petitioner assails the dismissal of the Criminal Appeal No. 375/2014 of the Sessions Court, Thalassery challenging the common order in CMP Nos. 6773/2008 and 810/2009 of the Judicial First Class Magistrate Court, Taliparamba. 2. The above applications arose from crime No.73/1994 on the files of Sreekandapuram Police station for offences punishable under sections 465,380 and 380(1) of IPC. The FIR was registered pursuant to a fax message sent from Doha by the father-in-law of the revision petitioner and the revision petitioner herein alleging that the first respondent herein, who was employed as house boy at their house in Doha, had decamped on 12/5/1994 carrying huge gold ornaments and other valuables. It was alleged that, he had fled to India. The accused/first respondent was arrested on 19/6/1994. Pursuant to his arrest, search was conducted at his house and gold ornaments were recovered from the house. Investigation continued, but final report was not filed for a long period. Ultimately, the accused approached this court by filing Crl.MC No. 3152/2006 with Crl.R.P.No.1623/2016 2 a request to quash the proceedings and all further proceedings pursuant to the arrest. This court, considering the long delay in completion of the investigation, quashed the proceedings. However, it was directed that the seized articles shall not be returned to the accused for a period of six months from the date of the judgment. It was also directed that, if in the meanwhile, any claimant comes forward, such claim shall be considered in accordance with law vis a vis, the claim of the petitioner for return of the articles. It was directed that, in such circumstance, release of the articles shall be as per the orders to be passed by the Magistrate on such claims. It was again directed that, if there was no such claimant, on the expiry of the period of six months, articles seized shall be released to the accused. 3. In the meanwhile, a person claiming to be the power of attorney of the revision petitioner, who is stated to be the son-inlaw of the defacto complainant, filed CMP No. 6773/2008 seeking custody of the gold ornaments. This was taken up and heard along with CMP No. 810/2009, filed by the accused seeking custody of same articles. Both the applications were jointly tried. On the side of the revision petitioner PW1 and PW2 were examined and Exts.A2 to A7 were marked. There was no evidence on the side of the first respondent herein, who is the accused. The trial court, by a common order dismissed CMP No. 6773/2008 and allowed CMP 3 Crl.R.P.No.1623/2016 No. 810/2009. This was carried in appeal No. 375/2014 before the Sessions Court, Thalassery. The Appellate Court by its judgment dismissed the appeal, confirming the order of the trial court. This is under challenge in this revision. 4. One of the contention vehemently marshaled by the learned counsel for the first respondent was that, since there was no enquiry as contemplated under law, section 452 Cr.P.C was not applicable. It was hence contended that, the appeal under section 454 Cr.P.C was also not maintainable. This contention was considered by the lower appellate court. The accused had moved this court in another proceeding (Crl.M.C.No. 6918/2014) wherein also, the very same contention was set up. It was contended that there was no concluded enquiry or trial and, therefore, section 452 of Code has no application. This Court by its order, relying on the decision in **Binu Paul v. Baburaj (2000 (3) KLT 945),** had held that the above contention was not sustainable. The lower appellate court had taken note of the fact that while quashing the proceedings , this court had directed the trial court to consider the rival claims, notwithstanding the fact that the crime stood quashed. In Crl.M.C.6918/2014, refuting the contention set up by the petitioner herein, this court had again directed the court to consider the rival contentions of the claimants taking into consideration the special circumstance that was available in the Crl.R.P.No.1623/2016 4 present case. Having considered the above facts, I am satisfied that the lower appellate court has correctly rejected the contentions of the accused that the appeal was not sustainable. 5. Learned counsel for the petitioner, relying on the decision of this court in **Krishna Pillai v. Public Prosecutor (1987 (2) KLT 366)** contended that as a general rule, it cannot be said that once the court, on merits, finds that the prosecution is not sustainable, articles seized and in the custody of the court should be restored to the person from whose possession it was seized. It was held that this ordinary rule was subjected to exceptions. It was held that if there are circumstances, which could render the returning of the property to the person from whose possession it was taken custody unjustifiable, the court shall not return it to such persons. When acquittal or discharge is based upon the inadequacy or doubtfulness of the proof offered, the court has certainly a discretion not to return it to the person from whose possession it was taken, if he is not a person entitled to the possession thereof. It was held that, it cannot be laid down as a general rule that when no offence is found to have been committed in respect of the property, the court should restore it to the person from whose possession it was taken. The enquiry envisaged in section 452 is to be confined to questions as to who is entitled to possession. The points to be considered in such an enquiry is Crl.R.P.No.1623/2016 5 regarding the nature of possession. The court concluded by saying that the point to be considered in such enquiry was regarding the nature and the possession whether possession was lawful or unlawful. 6. It was vehemently contended by the learned counsel for the revision petitioner that in the light of the above legal position, it could not be held that once the prosecution ended in an acquittal or discharge or was quashed by the High Court under section 482 Cr.P.C., it cannot straight away be presumed that the articles should be returned to the person from whom it was taken. It was contended by the learned counsel that articles were recovered from the possession of the accused in a concealed manner,and the criminal proceedings were quashed only on the ground of delay. There was no finding that the manner in which the first respondent accused came in possession of the gold ornaments was lawful. Hence, the general principle regarding the return of the gold ornaments to the person from whose custody it was seized has no application, it was contended. 7. It is to be noted that, the complainants are stated to be the revision petitioner and his father-in-law. The revision petitioner had filed CMP No.6933/2008 through a power of attorney. Both the courts have held that since the original owner was reported to be dead, in the meanwhile, the right devolved on the legal heirs. It Crl.R.P.No.1623/2016 6 appears that the legal heirs have not not come forward to make any claim over the gold ornaments. It is true that the fax message was sent by the person who claimed to be the original owner along with the revision petitioner. To that extent, he was a co-complainant. However, the lower appellate court had noted that in the fax message, it was stated that the father -in -law of the revision petitioner was the true owner. Both the courts have held that there were no specific materials to show that the revision petitioner had any right to claim possession over the property. This finding on facts does not call for any interference and does not appear to be illegal. 8. The incident happened in the year 1994. The crime was registered in the same year, pursuant to a fax message sent from abroad to the Superintendent of Police. The present claim petition was filed in the year 2008 on the strength of a power of attorney executed by the revision petitioner herein in favour of PW1 in the year 2008. Both the courts took note of the fact that the evidence of PW1 indicated that, the power of attorney came into existence several years after the incident. PW1 in his evidence admitted that,he does not know the revision petitioner. According to him, the revision petitioner was a friend of his brother in law. He had never seen the revision petitioner. Power of attorney was sent to him by post. There is absolutely nothing on Crl.R.P.No.1623/2016 7 record to show that the original complainant who is the father-inlaw of the revision petitioner was known to PW1 or he had ever seen PW1. PW1 however admitted that the owner of the articles has died. He had no idea about the articles which were allegedly recovered from the first respondent herein. He does not know how the revision petitioner obtained the right over the articles. He also does not know who are the legal heirs of the original owner. A perusal of the evidence of PW1 clearly shows that he has absolutely no knowledge regarding the facts constituting valuable articles, the ownership and the right of the person who claimed to be the owner. In the above circumstance, both the courts were perfectly justified in arriving at the factual conclusion that PW1 was not successful in establishing the ownership of the articles. Having regard to this, the finding of the courts below to the extent that the revision petitioner failed to establish his claim over the property, either by showing better title or that the revision petitioner had any right to claim the property cannot be found fault with. 9. To salvage the shabby evidence tendered by PW1, learned counsel for the revision petitioner contended that PW1 had turned hostile for reasons best known to him and did not support the revision petitioner. It was hence contended that fraud was played by PW1 and hence while considering the question of title, the fraud Crl.R.P.No.1623/2016 8 played by PW1 should also be taken note of by the court. To buttress this argument, learned counsel relied on the decision in **Smt.Bhatori v. Smt.Ram Piari (1996 KHC 1370)** , wherein the Supreme Court had held that, when the power of attorney holder had played fraud upon the appellant depriving the appellant of the valuable property denuding right, title and interest to claim compensation, the court should have taken note of the fraud played. Hence, the learned counsel for the revision petitioner sought for remand of the case to enable him to adduce evidence. 10. I am not persuaded to accept the above contention for more reasons than one. Even though PW1 was examined, cross examined and re-examined in detail, no suggestion was brought out at any point of time that witness has suppressed facts, which were within his knowledge. There was not even a suggestion in chief examination or in re-examination that he had turned hostile for reasons best known to him. The trend of evidence given by PW1 shows that he was only deposing confined to the limited facts within his knowledge. Such lacuna in the evidence cannot be filled up by further evidence. Further, even at the time of trial, there was no request for further opportunity on the ground that PW1 was aware of several facts, which he had suppressed while giving evidence. Hence, at this stage I am not inclined to accept the contention that PW1 played fraud on the revision petitioner or that Crl.R.P.No.1623/2016 9 evidence of PW1 justifies a remand. 11. Having considered the above facts, I find no reason to take a different view from the concurrent findings of fact arrived at by the courts below. Necessarily this leads to confirmation of the judgment passed by the lower appellate court confirming the common order of the trial court. In the light of the concluded decision of this court, while quashing the proceedings, that if no better claim is established, the property shall enure to the person from whom possession was taken, has to be given effect to, irrespective of the mode in which he allegedly obtained the property. It seems to be the only option that should follow, the clear finding of facts arrived at by both the courts below. The revision petition hence fails and is dismissed confirming the judgment of the appellate court in Criminal Appeal No.375/2014 in confirmation of the dismissal of CMP No. 6773/2008. Sd/- ## **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge **.**