Kochumol Biju v. State of Kerala and Sakir Ali

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946** **CRL.MC NO. 5541 OF 2024** **CRIME NO.273/2024 OF CHALISSERY POLICE STATION, PALAKKAD AGAINST ORDER IN CRL.M.P. NO.2833/2024 AND CRL.M.P.** **NO.2971/2024 OF JFCM, PATTAMBI** ## **PETITIONER/DEFACTO COMPLAINANT:** **KOCHUMOL BIJU AGED 46 YEARS, D/O. SCARIA KURIAN, VETTIKATTUKUNNEL, KOZHUVANAL POST, PULIYANNOOR, KOTTAYAM, KERALA, PIN - 686513** **BY ADVS. SRI.MANU TOM SRI.BALAMURALI K.P. SRI.RENIL IQUBAL K. SMT.HARIPRIYA.M SRI.AMAL C. PETER** ## **RESPONDENTS/STATE/ACCUSED:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 SAKIR ALI AGED 31 YEARS, S/O. ABDUL KHADER, KOZHITHODIVIL HOUSE, MOORKANAD P.O, MALAPPURAM, KERALA, PIN - 679338** **BY ADVS.** **SRI.ASHI M.C., PUBLIC PROSECUTOR SRI. K. PRAVEEN KUMAR SRI.JUNAIS V.T.** Crl.M.C. No.5541/24 **-:2:-** **SMT.SHABNAMOL VAKKEN SRI.ABDUL RASHEED** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON 05.08.2024 PASSED THE FOLLOWING:** Crl.M.C. No.5541/24 ## **-:3:-** ## **BECHU KURIAN THOMAS, J. -------------------------------Crl.M.C No.5541 of 2024 ---------------------------------** Dated this the 5[th] day of August, 2024 ## **ORDER** Petitioner challenges the common order dated 26.06.2024 in Crl.M.P No.2833/2024 and Crl.M.P No.2971/2024 on the files of the Judicial First Class Magistrate's Court, Pattambi. The issue relates to the interim custody of a lorry bearing registration No.KL-35-L-1557 seized in connection with Crime No.273/2024 of Chalissery Police Station. By the impugned order, the learned Magistrate directed the vehicle to be released to the second respondent herein, who was the applicant in Crl.M.P. No.2971/2024. 2. Petitioner filed a complaint alleging that her vehicle was stolen on 08.05.2024. Pursuant to the said complaint, Crime No.273/2024 of Chalissery Police Station was registered on 10.05.2024. Claiming to be the registered owner of the aforementioned vehicle, petitioner sought interim custody in Crl.M.P No.2833/2024 before the Judicial First Class Magistrate's Court, Pattambi. In the meantime, the second respondent also filed an Crl.M.C. No.5541/24 ## **-:4:-** application as Crl.M.P No.2971/2024, claiming custody of the same vehicle. 3. Petitioner alleged that though she had entered into Annexure 1 agreement with the second respondent, there was default in complying with the terms and the vehicle was even used for the commission of an offence within the limits of Cheranmagadevi Police Station, Tamil Nadu. Petitioner alleged that she had obtained interim custody of the vehicle from the Magistrate's Court in that crime at Cheranmagadevi, as per the order dated 05-03-2024, produced as Annexure 3, after producing the original certificate of registration and other documents. Thereafter, on 08-05-2024, the lorry was stolen from Palakkad resulting in Crime No.273/2024, pursuant to which it was seized from Kanyakumari. 4. Petitioner also alleged that in the meantime, the second respondent had also filed a false complaint as Crime No. 448/2024 of Kolathur Police Station alleging offence under section 420 committed by the petitioner and her husband, in which petitioner has already obtained anticipatory bail. According to the petitioner, despite all the above circumstances, the learned Magistrate had, by the impugned order, granted interim custody of the vehicle to the second Crl.M.C. No.5541/24 ## **-:5:-** respondent. 5. The second respondent, on the other hand, contended in his application in Crl.M.P. No.2971/2024 that, though the petitioner herein is the registered owner, as per Annexure 1 agreement for sale, the vehicle was handed over to him after payment of a portion of the sale consideration and the remaining amounts are being remitted to the bank as per the terms of the agreement. It was also alleged that along with the vehicle, the original registration certificate and other relevant documents were handed over to the second respondent on the date of agreement itself but for the purpose of obtaining the release of the vehicle from Cheranmagadevi Police Station, the original documents were handed back to the petitioner. However, after release of the vehicle by Annexure 3 order, the petitioner, contrary to the understanding, failed to return the vehicle.t The second respondent thereafter filed Crime No.448/2024 before the Kolathur Police Station and at the intervention of the police, a settlement was arrived at and the vehicle was handed back to the second respondent. Thus, the second respondent alleged that was in possession of the vehicle from May 2024 onwards. The second respondent also alleged that petitioner filed the false complaint Crl.M.C. No.5541/24 **-:6:-** alleging theft and even got the second respondent arrested and also seized the vehicle. The second respondent alleges that the case of the petitioner is a concocted story and that she had been paying the monthly EMI. 6. The learned Magistrate, after noting the contentions advanced, found by the impugned order that the second respondent is the person entitled to the rightful possession of the vehicle as an interim measure. 7. I have heard the arguments of Sri.Manu Tom, learned counsel for the petitioner, Sri. Junais V.T. learned counsel for the second respondent as well as Sri.Ashi M.C., the learned Public Prosecutor 8. While appreciating the rival contentions, it is necessary to bear in mind the scope of section 451 Cr.P.C. The arrangement under section 451 Cr.P.C is only temporary in nature, intended to provide custody to a person whom the court thinks fit with the liability to produce it back, as and when directed. The main purpose of the arrangement is to protect and preserve the property pending trial and the possession is only representative in nature and not in his independent right. The entrustment or custody of the property will not Crl.M.C. No.5541/24 ## **-:7:-** invest the person with any preferential right to ownership or even possession. Even in cases of rival claims, preference made to one person does not settle any ownership or possession and the consideration is only about the person to be entrusted with the property for the time being. Reference to the decision in **V.Prakashan v. K.P.Pankajakshan and Another** (1985 Cri. LJ 951), is relevant. 9. Petitioner claims custody of the vehicle on the basis of the registration certificate which stands in her name. However, petitioner admits Annexure 1 agreement and hence the terms of the said document cannot be ignored. As per the agreement, the possession of the vehicle along with the original documents was handed over to the second respondent and he has to pay the equated monthly instalments due to the bank. The terms also indicate that after the entire arrears due to the bank are cleared by the second respondent, the No Objection Certificate of the financier will be handed over to the second respondent to enable him to change the name of the owner of the vehicle. The aforesaid recital in the agreement justifies the name of the petitioner appearing in the registration certificate. 10. As far as Annexure 3 order of the Judicial First Class Crl.M.C. No.5541/24 **-:8:-** Magistrate, Cheranmagadevi, is concerned, it is evident that the obligation incurred upon the petitioner will, by virtue of the order impugned herein, fall upon the second respondent as well. Therefore merely because the custody of the vehicle was given to the petitioner by Annexure 3 order cannot advance the case of the petitioner. The obligation incurred in Annexure 3 runs with the vehicle. 11. In this context, it is appropriate to bear in mind that the registration certificate is essential for the use of the vehicle on the road and normally the person in whose name the registration certificate stands will be entitled to interim custody. However, the said principle is not inviolable and depending upon the circumstances of the case, the court can grant custody to persons other than those in whose name the vehicle stands. The decision of this Court in **Aliyar Kunju v. Subair Khan** (1984 KLT 268) is relevant in this context. 12. When the property is produced before the criminal court, it has the discretion to make such an order as it thinks fit for the proper custody of such property pending enquiry or trial as per S.451 of the Cr.P.C. As long as the discretion is exercised reasonably, this Court ought not to interfere with such orders unless the impugned order is Crl.M.C. No.5541/24 ## **-:9:-** palpably erroneous, perverse or totally irregular. 13. Since Annexure 1 agreement is an admitted agreement, its terms cannot be ignored. The discretion exercised by the learned Magistrate in relying upon its terms to grant custody to the second respondent cannot be said to be perverse or irregular. 14. Considering the entire circumstances of the case, this Court is of the view that the impugned order of the learned Magistrate does not warrant any interference in exercise of the jurisdiction under section 482 Cr.P.C. Hence this criminal miscellaneous case is dismissed. **Sd/JUDGE** **BECHU KURIAN THOMAS** vps Crl.M.C. No.5541/24 ## **-:10:-** ## **APPENDIX** ## **PETITIONER’S/S’ ANNEXURES** - **Annexure 1 THE TRUE COPY OF THE AGREEMENT DATED 31/05/2023 EXECUTED BETWEEN THE SAID MR. SAKIR ALI AND THE PETITIONER.** - **Annexure 2 THE TRUE COPY OF THE RC PARTICULARS OF THE VEHICLE BEARING NO. KL 35 L 1557** - **Annexure 3 THE TRUE COPY OF THE ORDER DATED 05/03/2024 IN CRL.M.P. NO.1348/24 PASSED BY THE COURT OF JFCM, CHERANMAHADEVI** - **Annexure 4 THE TRUE COPY OF THE JUDGMENT OF THIS HON’BLE COURT IN WP(C) NO.12927/2024 DATED 08/04/2024** - **Annexure 5 THE TRUE COPY OF THE ORDER DATED 10/06/2024 IN CRL.M.C. NO.687/2024 PASSED BY THE HON’BLE SESSIONS COURT, MANJERI** - **Annexure 6 THE TRUE COPY OF THE PETITION FILED BEFORE THE JFCM, PATTAMBI WHICH IS NUMBERED AS CRL.M.P. NO.2833/2024** - **Annexure 7 THE TRUE COPY OF THE REPORT OF THE POLICE (CHALISSERY POLICE) FILED IN THE PETITION FILED BY THE PETITIONER BEFORE JFCM, PATTAMBI.** - **Annexure 8 THE TRUE PHOTOCOPY OF THE SAID COMMON ORDER DATED 26/06/2024 PASSED BY THE JUDICIAL FIRST-CLASS MAGISTRATE, PATTAMBI IN CMP NOS. 2833/2024 & 2971/2024** **RESPONDENT’S/S’ ANNEXURES** **Annexure R2(a) COPY OF THE BANK STATEMENT** Crl.M.C. No.5541/24 ## **-:11:-** - **Annexure R2(b) COPY OF COMPLAINT TO THE SHO , KOLATHUR POLICE** - **Annexure R2(c) COPY OF THE JUDGEMENT IN WPC 12927/2024 Annexure R2(d) COPY OF FIR NO 448/2024 DATED 22.04.2024 OF KOLATHUR POLICE STATION** **Annexure R2(a1) COPY OF BANK STATEMENT** - **Annexure R2(e) COPY OF FIR NO 448/2024 DATED 22.04.2024 OF KULATHUR POLICE STATION** - **Anexure R2(f)** - **COPY OF FIS IN FIR 273/2024 OF CHALISSERY POLICE STATION** - **Annexure R2(g) COPY OF THE FIR NO 273/2024 OF CHALISSERY POLICE STATION** - **Annexure R2(h) COPY OF CMP NO. 2971/2024 FILED BEFORE THE JFCM PATTAMBI** - **Annexure R2(i) COPY OF ARGUMENT NOTE FILED IN CMP NO.2971/2024 BEFORE JFCM PATTAMBI** - **Annexure R2(j) COPY OF CMP NO. 2833/2024 FILED BEFORE JFCM PATTAMBI**