Noushad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941 Crl.MC.No.7150 OF 2019(C)** **CRIME NO.574/2019 OF Kunnamkulam Police Station , Thrissur** ## **PETITIONER/CLAIM PETITIONER:** **NOUSHAD AGED 38 YEARS S/O. ABU, RAYAMMARAKKAR HOUSE, PORKULAM P.O, KUNNAMKULAM, THRISSUR DISTRICT, PIN-680 542** **BY ADVS. SRI.JOSEPH GEORGE SMT.NICEY A. MENON SRI.P.A.REJIMON** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KUNNAMKULAM POLICE STATION, THRISSUR DISTRICT, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SMT V SREEJA -PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.10.2019, THE COURT ON 30.10.2019 PASSED THE FOLLOWING:** Crl.M.C.No.7150/2019 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.7150 of 2019 --------------------------------------------Dated this the 30[th] day of October, 2019 ## **O R D E R** More than a period of seventeen years is over since the highest court of the country had given directions to the Magistrates that they shall exercise the powers under Section 451 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') properly and promptly. It is unfortunate that, in some cases, orders are passed mechanically and casually without really absorbing the spirit of those directions given by the Apex Court. 2. In **Sunderbhai Ambalal Desai v. State of Gujarat :** **(2002) 10 SCC 283** , the Supreme Court has considered the scope of invoking Section 451 of the Code in respect of vehicles where it has been observed as follows: Crl.M.C.No.7150/2019 3 _“15. Learned Senior Counsel Mr. Dholakia appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time._ _16. However, the learned Counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons._ _17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles._ _18. ......... In any case, before handing over possession of such vehicles, appropriate_ Crl.M.C.No.7150/2019 4 _photographs of the said vehicle should be taken and detailed panchanama should be prepared”._ 3. The petitioner herein is said to be the registered owner of the car KL 48 K 3288 which was involved in Crime No.574/2019 of Kunnamkulam police station. It is a case registered for the offences punishable under Sections 324, 326 and 308 read with 34 I.P.C. The prosecution case is that the accused intentionally drove the aforesaid car towards the de facto complainant and his friends causing them injuries and that they made attempt to commit culpable homicide not amounting to murder by doing such act. 4. The petitioner is not an accused in the case. He readily produced the car at the police station on 22.05.2019, when he was directed to do so. The investigating officer seized the car and produced it before the court. 5. The petitioner filed application under Section 451 of the Code (mistakenly stated as Section 457 in the application) for releasing the car to his interim custody. The learned Magistrate dismissed the aforesaid application as per Annexure-A4 order. The order passed by the learned Magistrate reads as follows: Crl.M.C.No.7150/2019 5 _“The petition is filed by the petitioner under section 457 of Cr.P.C to release the car bearing register number KL-48-K-3288 which is involved in Crime 574/2019 of Kunnamkulam Police Station._ _SHO filed report stating that the vehicle is required for the investigation and further detention is required. The petitioner has no case that the investigation is complete. So the application is not allowed at this stage of case._ _In the result, the petition is dismissed.”_ Aggrieved by the aforesaid order, the petitioner has approached this Court by filing this petition under Section 482 of the Code. 6. Heard learned counsel for the petitioner and the learned Public Prosecutor. 7. The investigating officer had filed a report in the court below stating that the car belonged to the petitioner but it may not be released to him because the witnesses had to identify it. 8. Learned Magistrate blindly accepted the aforesaid report of the investigating officer and dismissed the application on the ground that the investigation of the case was not complete. Crl.M.C.No.7150/2019 6 9. The case was registered on 20.05.2019. On 22.05.2019 itself, the petitioner had produced the vehicle before the investigating officer. The report of the investigating officer is dated 05.07.2019. By that time, the car should have been got identified by the witnesses. Even if it was necessary for any witness to identify the vehicle at a later stage, releasing the vehicle to the interim custody of the petitioner would not have caused any hurdle to do so. When a vehicle is released to the interim custody of a person, appropriate conditions could be and should be imposed to ensure production of the vehicle as and when required by the court. 10. Learned Public Prosecutor, on instructions, submitted that on production of the car before the investigating officer, necessary inspection/examination of the vehicle was conducted for collecting evidence as it was a vehicle used by the accused for commission of the offences. Learned Public Prosecutor has also fairly submitted that, the witnesses who had to identify the car involved in the incident, have already identified it. Therefore, the purpose of keeping the vehicle in the custody of the court or at Crl.M.C.No.7150/2019 7 the police station is over. No useful purpose would be served by keeping the vehicle at the premises of the court or the police station, exposing it to rain, dust and sun. 11. Explanation (b) to Section 451 of the Code clarifies that, for the purposes of that provision, "property" includes any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. Therefore, there is no restriction or prohibition in releasing a vehicle to the interim custody of the proper person on the ground that it was used for commission of an offence. 12. Before releasing any property to the interim custody of a person, it is necessary for the court to ensure that evidence is not lost, altered or destroyed. The court has to take necessary safeguards as directed in **Sunderbhai** (supra) before granting interim custody of any property. 13. In the aforesaid circumstances, if the petitioner is the owner of the car, there can be no objection to the release of the vehicle to his interim custody. However, it is not proper for this Crl.M.C.No.7150/2019 8 Court to pass any orders releasing the vehicle to the interim custody of the petitioner without verifying the documents. It is necessarily a procedure to be adopted by the court below. 14. Consequently, the petition is allowed and Annexure-A4 order is set aside. Learned Magistrate shall consider afresh and dispose of the application filed by the petitioner for releasing the vehicle to his interim custody, in the light of the directions given by the Apex Court in **Sunderbhai** (supra) and also in the light of the observations made by this Court in this order. Learned Magistrate shall pass appropriate orders in this regard within a period of seven days from the date of producing a certified copy of this order before that court. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/30/10/2019 Crl.M.C.No.7150/2019 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 574/2019 OF KUNNAMKULAM POLICE STATION.** **ANNEXURE A2 CERTIFIED COPY OF CMP NO. 2577/2019 OF HON'BLE JUDICIAL 1ST CLASS MAGISTRATE COURT, KUNNAMKULAM.** **ANNEXURE A3 CERTIFIED COPY OF REPORT DATED 05.07.2019 OF SUB INSPECTOR OF POLICE KUNNAMKULAM. ANNEXURE A4 CERTIFIED COPY OF ORDER DATED 06.07.2019 IN CRL.M.P 2577/2019 OF THE HON'BLE JUDICIAL 1ST CLASS MAGISTRATE COURT, KUNNAMKULAM.** ## **RESPONDENT'S EXHIBITS: NIL** **TRUE COPY** **PS TO JUDGE**