R. Murukan v. State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, ``` ``` 1946 ``` ## **`CRL.MC NO. 345 OF 2024`** ``` CRIME NO.91/2023 OF ARUVIKKARA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER/JUDGMENT DATED 21.12.2023 IN CC ``` ``` NO.493 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS - ``` ## **`II,NEDUMANGAD`** ## **`PETITIONER/DEFACTO COMPLAINANT :`** ``` R.MURUKAN, AGED 52 YEARS S/O.RAMAN PILLAI, UTHRADAM VEEDU, CHERIYAKONNI, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN – 695 564. BY ADVS. K.SIJU ANJANA KANNATH ``` ## **`RESPONDENT/STATE & PW18 & PW20 :`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM– 682 031.`** - **`2 STATION HOUSE OFFICER ARUVIKKARA POLICE STATION, THIRUVANANTHAPURAM DISTRICT– 695 564.`** - **`3 SIJO JOSE, S/O JOSE, PROPRIETOR, ANGEL JEWELLERY, ERATTAYAR P.O, IDUKKI DISTRICT, FROM EZHUKUMVAYAL MAKKAL VEETTIL, EZHUKUMVAYAL P.O, KALKOONTHAL VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT, PIN - 685554`** - **`4 ARUN K.B., S/O BINOY, KAILATHU VEEDU, KOOTTAR DESOM, KARUNAPURAM P.O, UDUMPANCHOLA TALUK, IDUKKI DISTRICT – 685 554`** - **`BY ADV LIJI J VADAKKEDOM SRI.RANJITH T.R., PP`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC 345/2024 ``` ``` 2 ``` ## BECHU KURIAN THOMAS, J ......…............................................. Crl.M.C.No.345 of 2024 …................................................ Dated this the 4[th] day of April, 2024 ## ORDER Petitioner challenges the order dated 21-12-2023 rejecting his applications for interim custody of gold ornaments and other materials seized in Crime No.91/2023 of Aruvikkara police station. 2. The petitioner is the de facto complainant in Crime No.91/2023 of Aruvikkara Police Station registered on 17.01.2023, alleging theft of gold ornaments and other articles from his house. Pursuant to the complaint, some of the gold ornaments were recovered from a jewellery shop owned by CW18. After the final report was filed, cognizance was taken as C.C No. 493/2023 by the Judicial First Class Magistrate Court-II, Nedumangad. In the meantime, petitioner filed Crl.M.P No.4952/2023, Crl.M.P No.5549/2023 and Crl.M.P No. 5550/2023 seeking interim custody of the gold ornaments, gold ingots and other articles seized by the police in the above crime. ``` CRL.MC 345/2024 ``` ``` 3 ``` 3. The above referred applications were initially dismissed by the learned Magistrate after observing that there were rival claimants. However, when the said order was challenged before this Court in Crl.M.C.5747/2023, it was noticed that the finding of the trial court that there were rival claimants was incorrect, as both claimants were claiming different articles. With the above finding, this Court directed a re-consideration of the applications. 4. Subsequently, the learned Magistrate re-considered the matter and again dismissed the applications, stating that the properties are essential for the smooth conduct of the trial. 5. I have heard Smt.Anjana Kannath, the learned counsel for the petitioner and Sri.Ranjith T.R., the learned Public Prosecutor as well. 6. In the decision in Sunderbhai Ambalal Desai v. State of Gujarat - (2002) 10 SCC 283, the Supreme Court had observed that the articles, especially those of value, ought not to be retained either by the police or in court custody, unless they are essential for the conduct of the trial. With respect to the gold ornaments, the Supreme Court had observed that the seized articles be handed ``` CRL.MC 345/2024 ``` ``` 4 ``` over to the complainant as follows:- “(1) After preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. 13. For this purpose, the Court may follow the procedure of recording such evidence as it thinks necessary, as provided under S.451, CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under S.451, CrPC to impose any other appropriate condition. 7. In a Division Bench judgment of this Court in Suresh Serve V v. State of Kerala [(2020) 3 KLT 395] few additional conditions were stipulated relating to gold ornaments involved in a crime. Those conditions are as follows: “(iii) In the case of jewellery, apart from the preparation of a proper panchanama of the articles, taking photographs, etc., mandated in Sunderbhai Ambalal Desai's case, the following aspects also may ``` CRL.MC 345/2024 ``` ``` 5 ``` be considered depending on the facts in each case: (a) If, in a case, the allegation is that one or two gold ornaments have been stolen or snatched away from the de facto complainant, a Criminal Court invoking S.451 Cr.P.C. after taking necessary evidence and following the directions in Sunderbhai Ambalal Desai's case, may release the article under S.451 Cr.P.C. with the safeguards mentioned in the above decision and also with a direction to produce the same in the same condition as and when directed, especially when there is a rival claimant for the ornaments. If there is no rival claimant and no dispute is raised by the accused regarding the nature, shape, weight, etc. of the ornaments in question, in appropriate cases, the Court may even return the same without a condition to produce them in the same condition on a later date. (b) In a case involving theft of huge quantity of gold ornaments from a jewellery store or from a jewellery manufacturing unit, the Court should take extra precautions to see whether the claimant has established, by cogent evidence, a strong prima facie case to show his entitlement for staking the claim. In such cases, there ought to be records to support his claim. If there are sufficient documentary evidence showing his unquestionable entitlement to the articles, especially in a case where there is no rival claimant for the jewellery, we find no reason for ``` CRL.MC 345/2024 ``` ``` 6 ``` imposing a condition that the entire jewellery shall be produced in the same condition, as and when directed. If it is established by evidence that the ornaments claimed by him are stock in trade in the jewellery store, no earthly purpose will be served by returning them to the claimant by imposing such restrictions. Hence, such a condition need not be imposed in all cases, disregarding the factual situation in each case.” 8. It is evident that the gold ornaments involved in the case are allegedly stolen from petitioner’s house, since they were recovered pursuant to the complaint filed by the petitioner. Retaining the said properties either in the custody of the court or in the custody of the police would not be conducive, especially since they are highly valuable and no purpose would be achieved. In such circumstances, it is only proper to hand over those properties to the person entitled to the possession thereof. 9. Therefore, the impugned order dated 21.12.2023, in Crl.M.P No. 4952/2023, Crl.M.P No.5549/2023 and Crl.M.P No.5550/2023 on the files of the Judicial First Class Magistrate Court-II, Nedumangad, are set aside, and the articles sought for by the petitioner in Annexure-A3 petition shall be released to the ``` CRL.MC 345/2024 ``` ``` 7 ``` petitioner on interim custody on the following conditions:- - i. A detailed report of the articles shall be prepared; - ii. Photographs of such articles shall be prepared which - shall be signed by the petitioner and the Investigating Officer. - iii. Petitioner shall produce the articles as and when required by the Court and he shall not sell or transfer the gold ornaments until conclusion of the trial. This criminal miscellaneous case is allowed as above. sd/BECHU KURIAN THOMAS JUDGE AMV/04/04/2024 ``` CRL.MC 345/2024 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 345/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A1THE COPY OF FIR IN CRIME NO.91/2023 OF ARUVIKKARAPOLICESTATIONDATED 17.1.2023. ANNEXURE A2THE COPY OF FINAL REPORT IN CRIME NO.91/2023 OF ARUVIKKARA POLICE STATION DATED 1.4.2023. ANNEXURE A3THE COPY OF PETITION IN CMP NO.4952/2023 DATED 10.4.2023 FILED IN CRIME NO.91/2023 ON THE FILE OF JFMC-II, NEDUMANGAD. ANNEXURE A3(A)THE COPY OF PETITION IN CMP NO.5549/2023 DATED24.5.2023FILEDINCRIME NO.91/2023. ANNEXURE A3(B)THE COPY OF PETITION IN CMP NO.5550/2023 DATED 24.5.2023 IN CRIME NO.91/2023. ANNEXURE A4THE COPY OF OBJECTION DATED 9.5.2023 TO ANNEXURE A3 SUBMITTED BY THE 2ND RESPONDENT. ANNEXURE A4(A)THE COPY OF OBJECTION DATED 31.5.2023 TO ANNEXURE A3(A) SUBMITTED BY THE 2ND RESPONDENT. ANNEXURE A4(B)THE COPY OF OBJECTION DATED 31.5.2023 TO ANNEXURE A3(B) SUBMITTED BY THE 2ND RESPONDENT. ANNEXURE A5THE COPY OF ORDER DATED 20.6.2023 IN CMP NO.4952/2023 IN CC NO.493/2023 ON THE FILE OF JFMC-II, NEDUMANGAD ALONG WITH TYPED COPY. ANNEXURE A5(A)THE COPY OF ORDER DATED 20.6.2023 IN CMP NO.5549/2023 IN CC NO.493/2023 ON THE FILE OF JFMC-II, NEDUMANGAD ALONG WITH TYPED COPY. ``` ``` CRL.MC 345/2024 ``` ``` 9 ``` ``` ANNEXURE A5(B) ``` ``` ANNEXURE A6 ``` ``` ANNEXURE A7 ``` ``` ANNEXURE A7(A) ``` ``` ANNEXURE A7(B) ``` ``` THE COPY OF ORDER DATED 20.6.2023 IN CMP NO. 5550/2023 IN CC NO.493/2023 ON THE FILE OF JFMC-II, NEDUMANGAD ALONG WITH TYPED COPY. ``` ``` THE COPY OF COMMON ORDER DATED 6.11.2023 IN CRL.M.C NO.7647/23 AND 5747/23. ``` ``` THE CERTIFIED COPY OF IMPUGNED ORDER PASSED BY THE JFMC-II, NEDUMANGAD IN CMP NO.4952/23 BY ORDER DATED 21.12.2023. ``` ``` THE CERTIFIED COPY OF IMPUGNED ORDER PASSED BY THE JFMC-II, NEDUMANGAD IN CMP NO. 5549/23 BY ORDER DATED 21.12.2023. ``` ``` THE CERTIFIED COPY OF IMPUGNED ORDER PASSED BY THE JFMC-II, NEDUMANGAD IN CMP NO. 5550/23 BY ORDER DATED 21.12.2023. ``` **TRUE COPY**