Sudharmma (W/o Shibu) v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936** ## **Crl.MC.No. 1597 of 2014 ()** **--------------------------CRMP.NO.1520/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -III, PUNALUR CRIME NO. 113/2014 OF PATHANAPURAM POLICE STATION , KOLLAM DISTRICT** **-------------------------------------** ## **PETITIONER/PETITIONER :** **-------------------------------------------** **SUDHARMMA, W/O.SHIBU, KOLLIMANNOOR, PUNNALA VILLAGE, PIRAVANTHOOR.** **BY SRI.GRASHIOUS KURIAKOSE,SENIOR ADVOCATE ADV. SRI.GEORGE MATHEWS** **RESPONDENT/RESPONDENT:** **----------------------------------------------** **STATE OF KERALA, SUB INSPECTOR OF POLICE, PATHANAPURAM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. P.MAYA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **CRMC.NO.1597/2014** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX A COPY OF THE FIR PREPARED BY A.S.I OF PATHANAPURAM POLICE STATION** **ANNEX B COPY OF THE AFFIDAVIT AND PETITION FILED BY PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PUNALOOR.** **ANNEX C COPY OF THE ORDER DATED 22/02/2014 IN CRL.M.P.NO.1520/14 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PUNALOOR.** ## **RESPONDENT'S ANNEXURES: NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.1597 of 2014 .................................................. Dated this the 11[th] day of June, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner challenging the order in Crl.M.P.No.1520/2014 of the Judicial First Class Magistrate Court-III, Punaloor under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. It is alleged in the petition that the petitioner is the registered owner of the jeep KL-16-4671. The vehicle was seized by the investigating officer in connection with Crime No.113/2014 of Pathanapuram police station alleging that the accused persons have used this vehicle for commission of the crime. It is alleged in the petition that the vehicle is being used for taking the parents of the petitioner's husband to the hospital for regular checkup and it was not used for commission of any crime and it was a fabricated and false case, according to the petitioner. She filed Crl.M.P.No.1520/2014 before the Judicial First Class Magistrate Court-III, Punaloor for interim custody of the vehicle. The same was dismissed by the learned Magistrate 2 Crl.M.C.No.1597 of 2014 by Annexure-C impugned order which is being challenged by the petitioner by filing this petition. 3. Heard the senior counsel Sri. Gracious Kuriakose appearing for the petitioner and the learned Public Prosecutor. 4. The learned senior counsel appearing for the petitioner submitted that the reason stated by the court below for not granting interim custody is unsustainable in law. In fact, the vehicle has not been used for commission of any offence and even in the earlier case, it was not used for commission of the offence. The petitioner's husband has been falsely implicated in the case. The learned senior counsel also submitted that the vehicle was purchased in the name of the petitioner by her father and now he undertakes that the vehicle will not be used for any other unlawful purposes and he will retain custody of the same. Further, the vehicle need not be kept in custody for long time as detaining the same will cause deterioration of the vehicle. He had further submitted that the petitioner will abide by any conditions imposed by this Court. 5. The petition was opposed by the learned Public Prosecutor on the ground that investigation in the case is not over and the first accused, who is the husband of the petitioner, 3 Crl.M.C.No.1597 of 2014 is accused in several other cases including abkari case. Further, this vehicle was involved in Crime No.1482/2013 also and it was released to the petitioner as an interim custody and while so, the vehicle was again used by the husband of the petitioner and so, according to the learned Public Prosecutor, if it is released to the petitioner, it is likely to be used for doing similar offences by her husband, who is a habitual offender. So, according to the learned Public Prosecutor, the court below was perfectly justified in dismissing the application. 6. It is an admitted fact that the jeep with No.KL-16-4671 belongs to the petitioner and it was seized by the investigating officer in connection with Crime No.113/14 of Pathanapuram police station as the vehicle was used for commission of the crime. It is seen from the allegations in the First Information Statement that the accused persons including the first accused Shibu, who is none other than the husband of the petitioner, came in this jeep and attacked the injured and it was on the basis of the statement given by the defacto complainant/ injured that the present crime was registered. It is also an admitted fact that this vehicle had involved in another case namely Crime No.1482/2013 of the same police station in which also the 4 Crl.M.C.No.1597 of 2014 husband of the petitioner was an accused and the allegation in that case is that the accused persons travelled in the vehicle and committed the crime. Further, it is not disputed that, apart from these two cases, the petitioner's husband is accused in CR.No.6/2009 under Section 55(g) of the Abkari Act, Crime No.136/2010 under Sections 366 (A), 376 (g) and 34 of the Indian Penal Code, Crime No.215/2012 under Section 9 (B) (ii) of the Explosive Act and Crime No.1482/2013 under Sections 341, 294 (b), 323, 326 read with Section 34 of the Indian Penal Code was registered by Pathanapuram, Koodal police station and Excise Range Officer and apart from these proceedings, Section 107 of the Code has also been initiated against him and he was absconding in all these cases. It is also an admitted fact that this vehicle was released to the petitioner as interim custody in Crime No.1482/2013 as per the order in C.M.P.No.9809/2013. So it cannot be said that the petitioner was so innocent as submitted by the counsel for the petitioner and in fact the submission made by the counsel for the petitioner that the whereabout of the husband of the petitioner was not known to the petitioner also cannot be believed especially when he was involved in crimes and not surrendering before 5 Crl.M.C.No.1597 of 2014 the court and seeking for bail and this crime was committed after interim custody of this vehicle was obtained in Crime No.1482/2013 of the same police station and in that also the husband of the petitioner was the main accused and this vehicle was used. 7. But, however, in the decision reported in **Sunderbhai Ambalal Desai v. State of Gujarat** (AIR 2003 SC 638) the Supreme Court has held that in the case of motor vehicles, it should not be unnecessarily detained and even for identification of the vehicles, photographs of the vehicles can be taken and that can be used as evidence at the time of trial. Further, keeping the vehicle open to rain and sun will only cause deterioration to the vehicle and ultimately if it is released to the party, it will be of no use and without any value as well. So considering the circumstances, though the lower court was legally justified on account of the conduct of the petitioner in not releasing the vehicle, considering the practical angle and also in view of the dictum laid down in **Sunderbhai Ambalal Desai's case (** cited supra), this Court feels that the petition can be allowed and interim custody can be given to the petitioner with some stringent conditions directing the 6 Crl.M.C.No.1597 of 2014 petitioner to deposit the value of the vehicle as assessed by the Mechanical Engineer of the PWD Department as one of the conditions for releasing the vehicle and that will meet the ends of justice. So the order of the lower court is set aside and the petition is disposed of as follows: The learned Magistrate is directed to get the vehicle valued by the Mechanical Engineer of the PWD wing and after ascertaining the value of the same and getting a report, the vehicle can be released to the petitioner on the following conditions: i. The petitioner shall execute a bond for the value assessed by he Mechanical Engineer for the vehicle with two solvent sureties each for the like sum to the satisfaction of the Judicial First Class Magistrate Court-III, Punaloor. ii. The petitioner shall deposit the value of the vehicle assessed by the Mechanical Engineer, PWD Department before the court below within two weeks from getting the report of the officer regarding its value and the court below shall deposit this amount in a Nationalized Bank in the name of the court for a period of two years and ultimately if the vehicle is not liable for confiscation and ordered to be released to the Crl.M.C.No.1597 of 2014 7 petitioner later under Section 452 of the Code, then this amount can be released to the petitioner and if confiscation is ordered, then this amount can be forfeited to the Government. iii. The investigating Officer is directed to take photographs of the vehicle in such a way so as to expose its identity to be used as evidence later in the presence of the counsel for the petitioner, the defence counsel available and the Assistant Public Prosecutor and prepare an inventory of the same showing its present condition and produce the same before the court below along with the photographs taken. iv. The petitioner shall not dispose of or encumber or do anything in such a way so as to modify the present condition without getting prior permission from the concerned court, where the case is pending till the disposal of the case. v. The petitioner shall file an undertaking in the form of an affidavit that she will take care that the vehicle will not be used by her husband and it will not be used for commission of any offence and it will not be sold or encumbered or no alteration or modification will be made without getting permission from the court till the disposal of the case. 8 Crl.M.C.No.1597 of 2014 vi. If any of the conditions is violated or the undertaking is violated, then the court is at liberty to recall the order and take possession of the vehicle and keep it in its custody till the disposal of the case. With the above conditions, the petition is disposed of. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.1597 of 2014 9