IVRCL Ltd. v. State of Kerala and The Station House Officer, Mararikulam Police Station

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** # **FRIDAY, THE 18TH DAY OF JULY 2014/27TH ASHADHA, 1936** ## **Crl.MC.No. 3448 of 2014** **--------------------------CMP NO.166/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, ALAPPUZHA DATED 24-05-2014** **.......... CRIME NO. 522/2013 OF MARARIKULAM POLICE STATION , ALAPPUZHA** **........** **PETITIONER:** **--------------------------** **IVRCL LTD.,SITE OFFICE, BUILDING NO.XIV/218A, MATHILAKAM, MARUTHORVATTOM PO, CHERTHALA, REP. BY ITS ADMINISTRATOR, MR.ANTONY GEORGE, AGED 25 YEARS, S/O.GEORGE JOSEPH, PUTHANPURACKAL, AVALOOKKUNNU PO, ALAPPUZHA.** ## **BY ADV. SRI.B.PRAMOD** **RESPONDENTS:** **----------------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE STATION HOUSE OFFICER, MARARIKULAM POLICE STATION - 688 524.** ## **R1 & R2 BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.3448/2014** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.1: COPY OF THE CMP NO.166/2014 SUBMITTED BEFORE THE CJM COURT, ALAPPUZHA. ANNEX.II: COPY OF THE ORDER DATED 24/05/2014 IN CMP NO.166/2014 SUBMITTED BEFORE THE CJM COURT, ALAPPUZHA. ANNEX.III: COPY OF THE AUTHORIZATION LETTER.** **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.3448 of 2014 .................................................. Dated this the 18[th] day of July, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner challenging the order passed by the Judicial First Class Magistrate Court-I, Alappuzha in C.M.P.No.166/2014 under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner is a company, which has been granted the contract for execution of Japan Government aided Drinking Water Project, which is being implemented in various parts of Cherthala Taluk, Alappuzha District. The materials for the execution of the above work have been stored in its site office, which is within the limits of Mararikulam police station. While so, four pipes fitted with flanges, one flange and one elbows stored in the said site office were stolen by some miscreants, in relation to which the 2[nd] respondent has registered Crime No.522/2013 of Mararikulam police station alleging offence under Section 380 of the Indian Penal Code. During the course of investigation, the above said articles were recovered and Crl.M.C.No.3448 of 2014 2 produced before the concerned court. The petitioner being the owner of the articles and the same is required for the project, filed an application through their project coordinator for interim custody of the articles under Section 451 of the Code. The learned Magistrate by Annexure-II impugned order dismissed the application. Aggrieved by the same, the present petition has been filed by the petitioner. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. The counsel for the petitioner submitted that there cannot be any dispute regarding the fact that the petitioner is the owner of the articles and entitled to get interim custody of the same. Further the articles need not be kept in court for the purpose of trial and considering the dictum laid down in **Sunderbhai Ambalal Desai v. State of Gujarat** (AIR 2003 SC 638), the photographs and inventory of the articles can be taken and that can be used as evidence and according to the counsel for the petitioner, the lower court was not justified in dismissing the application. 5. On the other hand, the application was opposed by the Public Prosecutor on the ground that articles are required for Crl.M.C.No.3448 of 2014 3 identification later. 6. It is an admitted fact that the petitioner company is the contractor for implementing the Japan Government aided Drinking water Project in Cherthala taluk of Alappuzha district. According to the petitioner, certain materials kept in their work site were stolen and they have given a complaint earlier and on that basis, a crime was registered as Crime No.522/2013 of Mararikulam police station alleging offence under Section 380 of the Indian Penal Code against unknown persons. Thereafter Aroor police had seized the articles from the possession of the accused and it was revealed that the articles related to this crime and on the basis of the recovery, they have registered Crime No.819/2013 of Aroor police station and seized the articles and then produced before the court stating that these articles related to the case that has been registered by Mararikulam police namely Crime No.522/2013. Thereafter, the petitioner filed an application as C.M.P.No.166/2014 for interim custody of the articles through their authorized officer and the learned Magistrate dismissed the application on the ground that these articles are required for identification at the time of trial. Crl.M.C.No.3448 of 2014 4 7. Considering the fact that articles are pipes and other allied articles which are required for the project work of the petitioner, there is no meaning in keeping the articles in court for a long period. Further, if ultimately the case is disposed of and if any damage has been caused to the pipe, it will be useful for the petitioner for any purpose. In such cases, the principle laid down in **Sunderbhai Ambalal Desai's case** (cited supra) by the Supreme Court ought to have been adopted by the learned Magistrate in considering the question of release of the articles which are liable to be damaged keeping for long time while considering the application under Section 451 of the Code. Further, the investigation is almost over. The accused was also arrested in connection with the case as well. So considering the circumstances, there is no necessity to keep the articles in court and it can be handed over to the petitioner making some conditions as laid down in **Sunderbhai Ambalal Desai's case** (cited supra). The same view has been taken by this Court in **Asok Kumar v. State of Kerala** (2012 (4) KLT 436). So considering the circumstances, this Court feels that the order of the lower court has to be set aside and the petition Crl.M.C.No.3448 of 2014 5 has to be allowed. So Annexure-II order passed by the court below dismissing CMP.No.166/2014 is set aside and the same is allowed with the following conditions: i. The lower court is directed to release the articles which has been seized in connection with this case as articles stolen to the petitioner on executing a bond for Rs.50,000/by an authorized officer of the company after getting undertaking from the company that in case bond has to be enforced, the company will pay the loss if any sustained on account of the non production of the articles with two solvent sureties each for the like sum to the satisfaction of the Judicial First Class Magistrate Court-I, Alappuzha. ii. The lower court is directed to instruct the investigating officer to take photographs of the articles to be released with its description and produce the photographs along with the inventory before the court within a particular time fixed by that court and after getting the photographs and inventory and getting the bond executed, the articles can be released to the authorized person of the petitioner company. iii. The petitioner company shall undertake that they will produce the articles as and when required by the court and Crl.M.C.No.3448 of 2014 6 they will not destroy or deface the articles without getting permission from that court. With the above conditions, this petition is allowed. Office is directed to communicate this order to the concerned court immediately. Hand over copy of the order. **Sd/K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge