K.P. Muhammedali v. Dr Abdullah Saif and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938** **Crl.MC.No. 6918 of 2014 () --------------------------CRMP. 5751/2014 IN CRL.A. 375/2014 SESSIONS COURT, THALASSERY CMP 810/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT, TALIPARAMBA CMP 6773/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT, TALIPARAMBA** **-------** **PETITIONER(S)/ACCUSED: ---------------------** **K.P.MUHAMMADALI, AGED 44 YEARS, S/O. ABDUL KHADER, KOOTTUMUGHAM, SREEKANDAPURAM, KANNUR DISTRICT.** **BY ADV. SRI.M.V.AMARESAN** **RESPONDENT(S)/COMPLAINANT: --------------------------** ## **1. DR.ABDULLAH SAIF** **HINDI MINISTRY OF INTERIOR, DHOHA, QUATAR.** ## **2. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY ADV. SRI.M.SASINDRAN** **R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 6918 of 2014 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** - **ANNEXURE 1: COPY OF ORDER IN CRL.M.C. 3152/2006 DT 24/6/2008 PASSED BY THIS HON'BLE COURT.** - **ANNEXURE 2: COPY OF COMPLAINT FILED BY THE POWER ATTORNEY HOLDER OF R1 CMP. 6773/2008 IN CRIME NO. 73/1994 BEFORE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE, TALIPARAMBA.** - **ANNEXURE 3: COPY OF C.M.P. 810/2009 FILED BY THE PETITIONER BEFORE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, THALIPARAMBA** - **ANNEXURE 4: COPY OF NOTES OF ARGUMENT DT 6/2/2009 FILED BY THE PETITIONER BEFORE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE, TALIPARAMBA.** - **ANNEXURE 5: COPY OF A COMMON ORDER DT 17/9/2014 IN CMP NO. 810/2009 AND CMP NO. 6773/08.** - **ANNEXURE 6: COPY OF MEMORANDUM OF CRL.A. 375/2014 FILED BY THE R1 BEFORE THE COURT OF SESSIONS, THALASSERY.** - **ANNEXURE 6(A): COPY OF ORDER DT 11/11/2014 IN CRL.M.P. 5751/2014 IN CRIMINAL APPEAL NO.375/2014 N THE FILE OF HON'BLE SESSIONS COURT, THALASSERY.** **RESPONDENT'S ANNEXURES : NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.6918 of 2014 ----------------------------------------Dated this the 18[th] day of August, 2016** ## **O R D E R** - 1.The appeal filed under Section 454 of the Code of Criminal Procedure by the respondent No 1 herein through his power of attorney holder and the consequent order passed by the Sessions Judge is under challenge in this petition . - 2.To understand the nuances of the case, a brief narration of the case will be quite apposite. - (a) The petitioner was the accused in Crime No.73 of 1994 of Sreekandapuram Police Station. The said case arose on the basis of a complaint received by fax by the Superintendent of Police, Kannur wherein allegations of commission of offenses under sections 465, 380 and 381 of the IPC was raised against the petitioner. Crl.M.C.6918/2014 2 (b) The specific allegation was that the petitioner herein while working as a houseboy of a person by name Mohammed Ali at Doha, allegedly decamped, carrying with him gold ornaments, cash etc on 12.5.1994. (c) On the strength of the said information received by fax, a Crime was registered on 18.6.1994. The petitioner was consequently arrested on 19.6.1994. (d) Pursuant to his arrest, search was conducted and certain gold ornaments were recovered from the residential premises of the petitioner. He was enlarged on bail on 22.7.1994. (e) The specific contention of the petitioner was that the allegations are false and he was falsely implicated by some aggrieved co-worker. According to the petitioner, he was lawfully entitled to possess the gold ornaments. 3.The investigation did not make any headway and in the said circumstances, the petitioner approached this Court by filing Crl.M.C.No.3152 of 2006 seeking to quash the Crl.M.C.6918/2014 3 FIR and all further proceedings pursuant thereto. 4.This Court, taking note of the laggardly manner in which the investigation was proceeding, issued directions to the Investigating Officer to expedite the investigation. Though a final report was laid before the jurisdictional Magistrate, it was returned. - 5.Finally, this Court after considering the contentions of the petitioner as well as the learned Public Prosecutor and taking note of the long delay in completion of the investigation, passed orders quashing the proceedings and also directed that the seized articles be returned to the petitioner. The operative portion of the said order is extracted below for easy reference. _“15. I am satisfied that the interests of justice will be served eminently by directing that the seized articles shall not be returned to the petitioner for a period of six months from this day. In the meantime, if there be any claimant, such claims shall be considered in accordance with law viz a viz the claim of the petitioner for return of the articles. If there be any such claimants, release of the seized articles shall be as per the orders to be passed_ Crl.M.C.6918/2014 4 _by the learned Magistrate on such claim. If there is no such claimant, on expiry of the period of months from this date, the articles seized shall be returned to the petitioner herein._ _This Crl.M.C. is, in these circumstances, allowed. All further proceedings in Crime No.73 of 1994 of Sreekandapuram Police Station is hereby quashed. The seized articles shall be dealt with as already directed above.”_ - 6.It appears that within the said period of six months, a person claiming to be the power of attorney holder of the son-in-law of the de facto claimant filed an application before the learned Magistrate seeking interim custody. His claim was considered by the learned Magistrate and as per order dated 17.9.2014, which is produced as Annexure-5, it was found that the petitioner herein was the person who was entitled to get release of the articles. 7. Aggrieved by the said order passed by the learned Magistrate Annexure-6 appeal was preferred consequent to which Annexure-6(a) order was passed staying the operation of the orders of the learned Magistrate. Crl.M.C.6918/2014 5 8.Heard the learned Counsel appearing for the petitioner, the 2[nd] respondent and also and the learned Public Prosecutor. - 9.According to the learned counsel, Annexure-6 appeal filed under section 454 of the Code of Criminal Procedure cannot be maintained under law as an appeal would lie only against an order passed under section 452 of the Code. It is the submission of the learned Counsel, that Annexure 5 order was passed in an extraordinary situation by this Court in a petition filed under section 482 of the Code. There was no concluded enquiry or trial and therefore section 452 of the Code has no application . The learned Counsel would rely on the case of **Binu Paul V Baburaj** (2000 (3) KLT 945)to advance his contentions. - 10.The learned counsel appearing for the 2[nd] respondent would submit that the said submission cannot be sustained. According to the learned counsel this Court by Annexure-1 order had specifically observed that the orders Crl.M.C.6918/2014 6 have been passed in an extra ordinary situation and by referring to paragraph 15 of Annexure-1 order it is contended that this Court had specifically directed that if there be any claimant, such claim shall be considered in accordance with law. - 11.I have considered the rival submissions. I have also taken note of the decisions cited by the learned counsel appearing for the petitioner in **Binu Paul v. Baburaj** (2000 (3) KLT 945). In **Binu Paul** (Supra), a learned single Judge of this Court has held that when there has been no inquiry or trial in a Criminal Court, S.452 is not applicable and no order can be made under it. Be that as it may, after going through Annexure-1 order it appears to me that this Court was persuaded to quash the FIR in Crime No.73 of 1994 of Sreekandapuram Police Station in view of the long and undue delay in the finalization of the investigation by the agency concerned. This Court held that in the interest of justice seized articles should not be Crl.M.C.6918/2014 7 returned to the petitioner herein for a period of six months from the date of order. It was also ordered that if any claimant comes forward with any claim, the same has to be considered in accordance with law viz a viz the claim of the petitioner for return of articles. - 12.Taking note of the extraordinary nature of the case presented, it will only be just and proper for the learned Sessions Judge to consider the challenge over Annexure-5 order and to take it to its logical conclusion. I am of the view that this Court will not be justified in interfering with the proceeding in exercise of the powers under Section 482 of the Code. - 13.However, it shall be open for the learned Sessions Judge to consider all questions raised by the petitioner in the appeal, untrammeled by the observations made by this Court in this order. The learned Counsel has also pointed out that the 2[nd] respondent had no legal right to approach the learned Sessions Judge in appeal on the strength of a 8 Crl.M.C.6918/2014 power of attorney. The learned Sessions Judge shall pointedly consider the said aspect as well at the time of hearing Crl.Appeal No.375 of 2014. 14.As it is clear from the records that the disputes are in respect of a Crime which was registered in the year 1994 , the learned Sessions Judge is directed to expedite the matter and pass appropriate orders thereon within six weeks from the date of receipt of a copy of this order. Petition is disposed of as above. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps