Muhammed Shafi S/o Sirajudheen v. The State of Kerala and The Sub Inspector of Police (Ayiroor Police Station), Crime No. 96/2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 6TH DAY OF MARCH 2014/15TH PHALGUNA, 1935** **Crl.MC.No. 1417 of 2014 () ---------------------------** ## **C.M.P. NO. 1336/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT -1, VARKALA** **CRIME NO. 96/2014 OF AYIROOR POLICE STATION , THIRUVANANTHAPURAM** **PETITIONER/PETITIONER(S):** **-----------------------------------------** **MUHAMMED SHAFI S/O.SIRAJUDHEEN, RAHUL VILLA PALLIMUKKUKARA, VADAKKEVILA, KOLLAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** **RESPONDENTS/STATE:** **----------------------------------** ## **1. THE STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** ## **2. THE SUB INSPECTOR OF POLICE** - **AYIROOR POLICE STATION THIRUVANANTHAPURAM DISTRICT PIN-679 580** **BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.P** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-032014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1417 of 2014 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNX.A - TRUE COPY OF THE FIR IN CRIME N.96/2014 OF THE AYIROOR POLICE STATION DATED 9-2-2014** **ANNX.B - TRUE COPY OF THE ORDER PASSED BY THE J.F.C.M.-I, VARKALA DATED 19-2-2014** **RESPONDENTS EXHIBITS: NIL** **/TRUE COPY/** **P.A. TO JUDGE** **SKV** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.1417 of 2014 .................................................. Dated this the 6[th] day of March, 2014. ## **O R D E R** This is an application filed by the petitioner, who is the owner of the vehicle seized by the police in Crime No.96/2014 of Ayiroor police station, against the order passed by the Judicial First Class Magistrate Court-I, Varkala in CMP.No.1336/2014 under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner is the owner of an excavator/JCB and it was hired by one Ashok Kumar to remove some obstruction in a road leading to his property situated in Ayiroor village. There has been a long standing dispute between the said Ashok Kumar and office bearers of the temple committee regarding the disputed road and the temple committee had constructed a wall across the road leading to the property of the petitioner. There were civil cases pending between the temple committee and Ashok Kumar and others before the Munsiff Court, Varkala in respect of the disputed pathway. When the said Ashok Kumar has used 2 Crl.M.C.No.1417 of 2014 the excavator belonging to the petitioner to remove the obstruction, on the basis of a statement given by the defacto complainant, the second respondent registered a case as Crime No.96/2014 of Ayiroor police station alleging the offences under Sections 143,147,148,447, 427 read with Section 149 of the Indian Penal Code. The excavator was also seized by the police and produced before court and it was ordered to be kept in the custody of the police and it is now in the police station now. The petitioner filed C.M.P.No.1336/2014 before the Judicial First Class Magistrate Court, Varkala for interim custody of the vehicle under Section 451 of the Code of Criminal Procedure and that petition was dismissed by the learned Magistrate by impugned Annexure-B order. Aggrieved by the same, the present petition has been filed by the petitioner seeking the following relief: In the circumstances, it is most humbly prayed that this Hon'ble Court may be pleased to quash Annexure B order passed by the JFCM-I, Varkala dated 19.2.2014 and direct the vehicle bearing registration No.KL36D/792 to be released to the petitioner for interim custody, in the interest of justice. ## 3. Heard the counsel for the petitioner and the learned Public Prosecutor. ## 4. The counsel for the petitioner submitted that the Crl.M.C.No.1417 of 2014 3 learned Magistrate has not in fact rejected the application on the ground that petitioner is not entitled to get interim custody, but only because of the tension prevailing in the locality, the vehicle cannot be released at this stage and that is not the order that ought to have been passed by the Magistrate. The counsel for the petitioner submitted that he is in possession of the vehicle on the basis of an agreement. So, according to the learned counsel for the petitioner, the learned Magistrate ought to have granted interim custody of the vehicle to the petitioner. 5. The application was opposed by the learned Public Prosecutor on the ground that tension prevailing in the locality and if the vehicle is released it will create law and order situation there, the Magistrate has not committed any illegality in passing the order. 6. The learned Public Prosecutor also has no case that the petitioner was not in possession of the vehicle and it was given to one of the accused in the case. Further, the Prosecutor also had no case that the present petitioner has been implicated in the case as accused and she has no case that the petitioner has got any involvement in the commission of the crime as well. It is an admitted fact that a crime was registered as Crime No.96/2014 of Ayiroor police station on the basis of the Crl.M.C.No.1417 of 2014 4 statement given by the defacto complainant alleging the offences under Sections 143,147,148,447, 427 read with Section 149 of the Indian Penal Code against one Ashok Kumar and others as Annexure A. It is also mentioned in the First Information Statement that the alleged damage was caused using the excavator which is the subject matter of this petition. It is also an admitted fact that the petitioner herein filed CMP.No.1336/2014 for interim custody of the vehicle wherein it is mentioned that he had purchased the vehicle from the original owner on the basis of sale agreement dated 10.3.2013 (it was submitted by the counsel for the petitioner that it was purchased as per sale agreement dated 10.6.2013 and the date mentioned in the order is a mistake) and he had also produced the photostat copy of the R.C. Book and special contingency policy issued by the National Insurance Company and photostat copy of the agreement for sale. It is also observed in the order that petitioner seems to be the person immediately entitled to get custody of the excavator. But the learned Magistrate did not order interim custody only on the ground that if interim custody is ordered at the time when tension prevailing in the locality, there is possibility of public tranquility being affected as alleged temple property has been involved in Crl.M.C.No.1417 of 2014 5 the matter. But that should not be a ground for rejecting the application for interim custody. Further, in fact the vehicle may be one of the articles to be produced before court for the purpose of identification as the tool used for damaging the compound wall. But, that does not mean that the vehicle will have to be kept under custody till the disposal of the case especially when the vehicle exposes to sun and rain for a long period, it will become useless when it is ultimately to be returned to the parties after the disposal of the case. 5. Further in the decision reported in **Sunderbhai Ambalal Desai v. State of Gujarat** (AIR 2003 SC 638) , the Hon'ble Supreme Court has considered the scope of invoking Section 451 of the Code of Criminal Procedure in respect of vehicles where it has been observed as follows: “The powers under S.451 Cr.P.C should be exercised expeditiously and judiciously. It would serve various purposes, namely:- 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation: 2. Court or the police would not be required to keep the article in safe custody; 3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail, and 4. The jurisdiction of the Court to record evidence should be exercised promptly so that 6 Crl.M.C.No.1417 of 2014 there may not be further chance of tampering with the articles. The procedure for disposal of seized articles and currency notes, vehicles, seized liquor and Narcotics drugs suggested. Further Magistrate directed to pass appropriate orders immediately and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. The said object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly” 6. So sufficient safeguard can be taken by the court for ensuring identity of the vehicle by taking photographs also keeping the vehicle in tact till the disposal of the case. So considering the circumstances, this Court feels that release of the vehicle can be ordered to the petitioner on the following conditions: i. Since the petitioner has not produced the original agreement for sale to satisfy the court that he is the person entitled to possession on the basis of the agreement, the petitioner is directed to produce the relevant documents before the court to satisfy the court that he is the present owner of the vehicle and possession of the vehicle was given to one of the accused on lease and he is entitled to get interim custody of the vehicle. ii. If the Magistrate is satisfied that the petitioner is the Crl.M.C.No.1417 of 2014 7 present owner of the vehicle after conducting necessary enquiry on this regard and the Magistrate is satisfied that the petitioner is the present owner of the excavator and entitled to get interim custody, then release the vehicle on the following conditions: a. Direct the petitioner to execute a bond for Rs.10 lakhs with two solvent sureties for the like sum each to the satisfaction of the Magistrate concerned. b. Direct the investigating Officer to take photographs of the excavator as mentioned in the decision cited supra and prepare an inventory of the present condition of the vehicle and produce the same before court along with the photographs and the inventory so as to ensure the present condition of the vehicle and also use the same as evidence at the latest stage as mentioned in the decision cited supra. c. The petitioner shall not encumber or transfer or change the character of the excavator without getting prior permission from the Magistrate during the pendency of the case. d. The petitioner shall produce the excavator before court as and when required by the court and he shall file an undertaking in the form of an affidavit that he will abide by all conditions imposed for granting interim custody of the vehicle. Crl.M.C.No.1417 of 2014 8 e. If the Magistrate is not satisfied with the ownership of the vehicle, then Magistrate is at liberty to pass appropriate orders in this regard. g. The petitioner is directed to file an application before the Magistrate court to prove his right to possession and get interim custody of the vehicle to satisfy the court on this aspect and the Magistrate is at liberty to consider the documents and pass appropriate orders in accordance with law. With the above directions and observations, the petition is disposed of. Office is directed to communicate this order to the concerned court and also hand over a copy of this order to the counsel for the petitioner as well for production before the concerned court for further action in this regard. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.1417 of 2014 9