Sijo Jose v. State of Kerala

# **`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. 2538 OF 2024 CRIME NO.91/2023 OF ARUVIKKARA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER/JUDGMENT DATED 21.12.2023 IN CMP 5227/2023 CC NO.493 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, NEDUMANGAD ``` ## **`PETITIONER/PETITIONER/CW18 :`** ``` SIJO JOSE, AGED 35 YEARS S/O. JOSE, PROPRIETOR, ANGEL JEWELLERY, ERATTAYAR P.O., ERATTAYAR VILLAGE FROM MAKKAL VEEDU, EZHUKUMVAYAL, EZHUKUMVAYAL P.O., KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN – 685 514. BY ADVS. LIJI.J.VADAKEDOM ATHUL V. VADAKKEDOM ``` ## **`RESPONDENTS/RESPONDENTS/STATE, COMPLAINANT & DEFACTO`** ## **`COMPLAINANT :`** - **`1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031.`** - **`2 THE SUB INSPECTOR OF POLICE- ARUVIKKARA ARUVIKKARA POLICE STATION, ARUVIKKARA, THIRUVANANTHAPURAM, PIN – 695 556.`** ``` 3R. MURUKAN AGED 52 YEARS, S/O. RAMAN PILLAI, UTHRADAM VEEDU, CHERIYAKONNI, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT – 695 564. SMT.SREEJA V. ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ``` ``` ON 04.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC 2538/2024 ``` ``` 2 ``` ## BECHU KURIAN THOMAS, J ......…............................................. Crl.M.C. No.2538 of 2024 …................................................ Dated this the 4[th] day of April, 2024 ## ORDER Petitioner is the proprietor of a jewellery shop. Petitioner is CW18 in Crime No.91/2023 of Aruvikkara Police Station. The crime was registered on 17.01.2023, alleging theft of gold ornaments and other articles from the de facto complainant’s house. Pursuant to the complaint, some of the gold ornaments were recovered from petitioner’s jewellery shop as well. After the final report was filed, cognizance was taken as C.C No.493/2023 by the Judicial First Class Magistrate Court-II, Nedumangad and it is pending. 2. While the seizure of gold was effected from petitioner's shop, certain other gold ornaments belonging to the petitioner and which were not the subject of theft were also recovered from the petitioner’s shop. Hence, petitioner preferred CMP No.5227/2023 seeking custody of 32.250 grams of gold produced as item No.1 and 3 in T. No.118/2023. The said application was initially dismissed by the ``` CRL.MC 2538/2024 ``` ``` 3 ``` learned Magistrate, after observing that there were rival claimants. The said order was challenged before this Court in Crl.M.C.No.7647/2023, wherein, after noticing that the finding of the trial court that there are rival claimants was incorrect, as both claimants were claiming different articles, the Magistrate was directed to reconsider the application afresh. 3. By the impugned order, the learned Magistrate again dismissed the application after re-considering it, holding that the properties are essential for the trial and also that the right to possession of the gold can be determined only after trial. 4. I have heard Sri.Athul V.Vadakkedom, the learned counsel for the petitioner, and Smt.Sreeja V., the learned Public Prosecutor as well. 5. 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 can be handed over to the claimant even during the pendency of the trial. ``` CRL.MC 2538/2024 ``` ``` 4 ``` 6. A Division Bench judgment of this Court in Suresh Serve V v. State of Kerala [(2020) 3 KLT 395] considered the aforementioned judgment and included few additional conditions for releasing gold ornaments involved in a crime. Those conditions are as follows: “(i) 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 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 ``` CRL.MC 2538/2024 ``` ``` 5 ``` 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 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. [emphasis supplied]” 7. It is evident that the gold ornaments involved in the case were 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. ``` CRL.MC 2538/2024 ``` ``` 6 ``` 8. Therefore, the impugned order dated 21.12.2023, in CMP No.5227/2023 in C.C.No.493/2023 on the files of the Judicial First Class Magistrate Court-II, Nedumangad, is set aside, and item No.1 and 3 in T. No. 118/2023 of the said court shall be released to the petitioner 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. Since the articles are the stock in trade of the petitioner, he is at liberty to use the same for his business. This criminal miscellaneous case is allowed as above. sd/BECHU KURIAN THOMAS JUDGE AMV/06/04/2024 ``` CRL.MC 2538/2024 ``` ``` 7 ``` ## **`APPENDIX OF CRL.MC 2538/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE -I ``` ``` THE COPY OF FIR IN CRIME NO.91/2023 OF ARUVIKKARA POLICE STATION DATED 17.1.2023. ``` ``` ANNEXURE -II ``` ``` THE COPY OF THE PURCHASE INVOICE DATED 27.01.2023 FOR RS. 2,27,986/-. ``` ``` ANNEXURE -III ``` ``` THE COPY OF THE LIST OF PROPERTY DATED 20.2.2023 NUMBERED AS T.N.NO.118/23 IN CRIME NO. 91/2023 OF ARUVIKKARA POLICE STATION. ``` ``` ANNEXURE -IVA COPY OF THE INVOICE DATED 27.01.2023 BY WHICH THE S MODEL CHAIN WEIGHING 16.250 GRAMS AND TWO BANGLES WEIGHING 16 GRAMS WERE SOLD TO THE 6TH ACCUSED. ``` ``` ANNEXURE -VTHE TRUE COPY OF PETITION AND AFFIDAVIT IN CMP NO. 3608/2023 DATED 13/3/2023 IN CRIME NO. 91/2023 OF THE ARUVIKKARA POLICE STATION BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD. ``` ``` ANNEXURE -V(A)THE COPY OF THE ORDER DATED 18.4.2023 DISMISSING THE PETITION IN CMP NO. 3608/2023 IN CRIME NO. 91/2023 OF THE ARUVIKKARA POLICE STATION BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD. ``` ``` ANNEXURE -VITHE TRUE COPY OF PETITION AND AFFIDAVIT IN CMP NO. 5227 /2023 DATED 9.05.2023 IN CRIME NO. 91/2023 OF ARUVIKKARA POLICE STATION PENDING AS CC NO. 493/2023 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD. ``` ``` ANNEXURE -VI(A) ``` ``` THE COPY OF THE ORDER DATED 20.6.2023 DISMISSING THE PETITION IN CMP NO. 5227 /2023 IN CRIME NO. 91/2023 OF ARUVIKKARA POLICE STATION PENDING AS CC NO. 493/2023 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NEDUMANGAD. ``` ``` CRL.MC 2538/2024 ``` ``` 8 ``` |**`ANNEXURE -VII`**|**`THE COPY OF THE JUDGEMENT OF THE HON'BLE HIGH`**| |---|---| ||**`COURT OF KERALA IN CRL.MC NO. 7647 OF 2023`**| ||**`DATED 6.11.2023.`**| |**`ANNEXURE -VIII`**|**`THE COPY OF THE ORDER DATED 21.12.2023`**| ||**`DISMISSING THE CMP NO. 5227/2023 IN CRIME NO.`**| ||**`91/2023 OF ARUVIKKARA POLICE STATION PENDING`**| ||**`AS CC NO. 493/2023 BEFORE THE JUDICIAL FIRST-`**| ||**`CLASS MAGISTRATE COURT-II, NEDUMANGAD.`**| ``` TRUE COPY ```