Sunny T. J. v. State of Kerala & Another

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945 CRL.MC NO. 4523 OF 2023`** ``` AGAINSTTHEORDERINC.CNO.642/2017OFJUDICIALMAGISTRATEOF - FIRSTCLASSIII,PERUMBAVOOR ``` ## **`- PETITIONER/DE FACTO COMPLAINANT :`** ``` SUNNYT.J.,AGED52YEARS,S/OJOSEPH, THEEYATTUSSERYHOUSE,THOONGALIKARA,VENGOORP.O., VENGOORVILLAGE,KUNNATHUNADUTALUK,PIN-683546 ``` ``` BYADVS. SABUJOHN SAKERIA.P.PAUL RAJEEVUL.G. ``` ## **`RESPONDENTS/STATE & ANOTHER :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682301`** - **`2 INSPECTOR OF POLICE, KURUPPUMPADY POLICE STATION , KURUPPUMPADY P.O., ERNAKULAM DISTRICT, PIN - 683545`** - **`*3 ADDL.R3 IMPLEADED :-`** ``` KURIAN,AGED55YEARS ``` ``` S/OKOCHAPPAN,PADICKALAHOUSE,ANCHUMANAAMBALAMROAD, EDAPPILLYSOUTHVILLAGE,KANAYNNURTALUKPIN-682021 ``` ``` *ADDL.R3IMPLEADEDASPERTHEORDERDATED20.06.2023IN CRL.M.A.NO.1OF2023INCRL.M.C.NO.4523OF2023. ``` ``` BYADVS. PUBLICPROSECUTOR NoAdvocate ARUNIMAG. O.V.DEEPA SRI.T.R.RENJITH,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 26.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` 2 Crl.M.C No. 4523 of 2023 ## **ORDER** This petition is filed challenging order dated 9.5.2023 in C.M.P.No.845/2023 in C.C.No. 642/2017 on the file of the Judicial Magistrate of the First Class-III, Perumbavoor. By the order impugned, the application filed by the petitioner for interim custody of the gold ingots seized in the case and for permission to sell the same was rejected. 2. Short facts are as under: Crime No. 657/2017 of Kuruppampady Police Station was registered on 8 April 2017 based on information furnished by the petitioner. The prosecution alleges that on 8 April 2017, unidentified persons trespassed into the petitioner's house and committed theft of gold ornaments weighing about 100 grams and cash worth Rs. 2,55,500. The offenses alleged in the FIR are under Sections 454, 461, and 380 read with Section 34 of the Indian Penal Code. In the course of the investigation, the accused were arrested, and the gold ornaments were recovered from the jewellery shop run by the third respondent. A final report was submitted before the Judicial Magistrate of the First Class-III, Perumbavoor, and the case is pending as C.C. No. 642/2017 on the files of the said court. Trial has commenced in the said case and the 3 Crl.M.C No. 4523 of 2023 petitioner, his wife Annie, and his sister-in-law, Lima, have been examined as PWs 1 to 3. Through them, the gold ingots have been marked as MO1 series. 3. In the course of trial, the petitioner filed an application for interim custody of the gold ornaments as C.M.P. No. 97/2018. The learned magistrate dismissed the application. Later, the petitioner filed C.M.P. No. 1075/2020 seeking the same relief. The learned magistrate again rejected the request. Challenging the order, the petitioner approached this Court and filed Crl.M.C. No. 1235/2021. As it was brought to the notice of this Court that the trial had progressed to the last stages, this Court by Annexure-A4 order dated 20 July 2021 directed the learned magistrate to dispose of the case within a period of two months. The petitioner states that thereafter the accused absconded and no further progress was made insofar as the disposal of the case is concerned 4. The petitioner states that his daughter is 27 years old, and her betrothal ceremony was held on 17 June 2023, as evidenced by Annexure-A5. Her marriage has been tentatively scheduled for the end of June 2023. Under the said circumstances, the petitioner approached the learned magistrate and filed C.M.P. No. 845/2023 seeking the release of the gold ingots and permission to sell them. The learned magistrate, as per the impugned order, has rejected his request. The said order is under challenge. 5. Sri. Sabu John, the learned counsel, submits that there is no 4 Crl.M.C No. 4523 of 2023 justification on the part of the learned magistrate in rejecting his request. According to the learned counsel, the Supreme Court in **Basavva Kom Dyamogouda Patil v. State of Mysore** [1977 (4) SCC 358] held that the object and scheme of the various provisions of the Code is that where the property which has been the subject matter of an offence is seized by the police, it ought not to be retained in the custody of the court or of the police for any time longer than what is absolutely necessary. Reliance is also placed on the law laid down in Sunderbhai Ambalal Desai v. State of Gujarat, [2002 (10) SCC 283], and it is argued that if materials on record disclose that the articles belong to the complainant from whose house theft has been committed, necessary orders can be issued entrusting the seized articles to the complainant by preparing a mahazar and by taking photographs and other safeguards. Reliance is also placed on the law laid down by a learned Single Judge of this Court in **Nagarajan v. State of Kerala** , [2019 (5) KHC 666] and it is submitted that in identical circumstances, this Court had permitted the de facto complainant in the said case to sell the ornaments by imposing appropriate conditions. There is no reason why the learned magistrate refused to take a sympathetic view in favour of the petitioner, contends the learned counsel. It is further submitted that a portion of the gold belonged to the sister-in-law of the petitioner who was examined as PW3, and she has filed 5 Crl.M.C No. 4523 of 2023 Annexure-A8 affidavit asserting that she has no objection to the release of the gold to the petitioner. The learned counsel would further point out that the 3rd respondent in the instant case is the jeweler from whose shop the gold ornaments were recovered, and he has also filed an affidavit before this Court stating that he is convinced that the gold ornaments belong to the petitioner. 6. I have heard the learned public prosecutor and have gone through the records. 7. From the case records, I find that the petitioner herein is the de facto complainant and according to the prosecution case, the gold ornaments recovered from the shop of the 3rd respondent were actually stolen from the house of the petitioner herein. Admittedly, the trial has reached a stalemate as the accused have absconded. The petitioner has placed on record Annexure-A5 card to substantiate that his daughter is planning to get married. He has also placed on record separate affidavits filed by PW3 and CW4 wherein they have stated that they have no objection in releasing the gold ingots to the petitioner. 8. In **Nagarajan** (supra), this Court has lucidly explained the principles in an identical fact scenario. It would be profitable to refer to paragraph Nos.14 to 18 of the judgment: 14. Section 451 of the Code permits sale of property, which is subject to 6 Crl.M.C No. 4523 of 2023 speedy and natural decay, pending the conclusion of the inquiry or trial. Can property, which is not subject to speedy and natural decay, be permitted to be sold before the conclusion of the trial of the case? Two things are very important. The interest of the owner of the property shall be protected. At the same time, prosecution case cannot be jeopardized on account of the absence of physical evidence during the trial. 15. Section 451 of the Code states that, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. The expression “if it is otherwise expedient so to do’’ in S.451 of the Code empowers the Court to dispose of the property during enquiry or trial, if the situation so warrants. The provision empowers the Court to sell or dispose of even a property, which is not subject to speedy and natural decay, if the court is satisfied that it is expedient to do so. The expression “if it is otherwise expedient so to do’’ confers a discretion upon the court to order sale of a property other than a property which is subject to speedy and natural decay. But, the discretion has to be exercised judiciously and depending upon the facts and circumstances of each case. 16. In this context, it is advantageous to refer to the observations made by the Karnataka High Court, in K.W. Ganapathy v. State of Karnataka (2002 (2) KLT OnLine 1011 (Karnt.) = 2002 Cri.L.J 3867), which read as follows: “6. Irrespective of the fact whether the properties have evidentiary value or not it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary 7 Crl.M.C No. 4523 of 2023 evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to. The rightful owners, who have lost the property by an act of crime even after detection and recovery are continued to be prevented from beneficial possession and enjoyment of the same by the archaic conditions imposed as a regular routine despite the changed context of scientific developments. 7. To illustrate, a situation one X loses gold jewellery by theft. The police successfully detect and discover the gold jewellery the same is produced before the Court. Production of gold jewellery and marking of the same in evidence to prove the same as corpus delecti is one of the insistence of law as a part of fair trial. Even after the gold jewellery is given to the custody of X to deprive him by imposing the condition of non-alienation from exercise of right of ownership for unreasonable length of time would be too harsh and one sided, and a nonchalant approach towards the victims of crime. It may be that X requires the gold jewellery for the purpose of the marriage of his daughter or may be that he may requires funds for medical treatment or other genuine needs, when he has no alternative source except by sale of the gold jewellery, the condition of non-alienation in such situation would be onerous and unreasonable. The production of property during the trial having incriminating value is a insistence to secure the rights of accused as a part of fair trial. At the same time, when there is a possibility of having a secondary evidence of the said property, it is no longer necessary in law to insist that the property to be kept intact without alteration and non-alienation”. 8 Crl.M.C No. 4523 of 2023 17. The production of property, which forms physical evidence, may become necessary during the trial of the case. But, it is not necessary that the original property inevitably has to be preserved and produced. Reception of secondary evidence is permissible, as held in Sunderbhai (supra). Instead of producing the original property, production of the photographs of the property, depicting all features of the same, would be sufficient. Identification of the photographs of the property, along with proof of its particulars, in the form of mahazar giving clear description of the nature, dimensions and features of the same, serves as a substitute for identification of the real property during the trial of the case. In Sunderbhai (supra), the Apex Court has held that taking photographs of the material object and obtaining the signature of the complainant and also of the accused thereon and keeping them in the case records to be exhibited at the time of trial, would serve the purpose. Thus, the interest of the prosecution, the interest of the owner of the property, the need of the prosecution to produce the property as evidence during trial and the right of the accused would be protected. 18. At the same time, sale of property, which is not subject to speedy and natural decay, shall not be permitted or ordered as a matter of course. It is necessary that the court shall be satisfied that it is expedient to sell the property in the given set of facts and circumstances. It is only when retention of a property with its owner, without the liberty of alienation, would cause undue hardship to him, that sale of it can be permitted or ordered. 9. The illustration given by this Court in Paragraph No. 16 of the judgment clearly applies to the fact scenario in the instant case. The gold jewelry is required by the petitioner to marry off his daughter. There is clearly a possibility of having secondary evidence of the said property, and therefore, it 9 Crl.M.C No. 4523 of 2023 is no longer necessary in law to insist that the property be kept intact without alteration and without alienating the same. Serious hardship would be caused to the petitioner if he is not permitted to sell the gold ingots. He cannot be blamed for the delay, as this Court as early as 20/7/21 had ordered that the case shall be disposed of within a period of two months. Since the accused have absconded, there is no prospect of the case being concluded in the near future. In that view of the matter, I am of the considered opinion that directions should be issued to the learned magistrate to grant interim custody of the ingots to the petitioner and to grant him permission to sell the same by imposing appropriate conditions. 10. In view of the discussion above, this petition will stand allowed. - a) Annexure-A7 order passed by the learned magistrate is set aside. - b) The petitioner is granted permission to sell MO1 series gold ingots involved in Crime No. 656/2017 of the Thoppumpady Police Station. - c) Before granting permission, a detailed inventory shall be prepared of the gold ingots with their full description, including its weight. - d) The photographs of the ornaments shall also be taken and the same shall form part of the records of the case. - e) The petitioner and the accused (if their presence has been secured) shall sign on the photographs and also in the 10 Crl.M.C No. 4523 of 2023 inventory prepared. If the accused are still absconding or if they refuse to sign on the photographs/inventory, the said fact shall be endorsed therein. This petition is disposed of as above. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** SMA 11 Crl.M.C No. 4523 of 2023 ## **`APPENDIX OF CRL.MC 4523/2023`** ## **`PETITIONER ANNEXURES :-`** ``` AnnexureA1TRUEPHOTOCOPYOFTHEFIRINCRIMENO. 656/2017INC.C.NO.642/2017OFTHEJFMC NO.III,PERUMBAVOOR. AnnexureA2TRUEPHOTOCOPYOFTHEFISINCRIMENO. 656/2017INC.C.NO.642/2017OFTHEJFMC NO.III,PERUMBAVOOR. AnnexureA3ATRUEPHOTOCOPYOFCMPNO.1075/2020INC.C. NO.642/2017OFTHEJFMCNO.III,PERUMBAVOOR AnnexureA4TRUEPHOTOCOPYOFTHEORDERCRL.M.C.NO.1235 OF2021DATED20/07/2021 AnnexureA5TUREPHOTOCOPYOFTHEINVITATIONCARDFORTHE BETROTHALOFTHEPETITIONER'SDAUGHTERTOBE CONDUCTEDON17/06/2023 AnnexureA6PHOTOCOPYOFTHECLAIMPETITIONCMP NO.845/2023DATED09/05/2023. AnnexureA7CERTIFIEDCOPYOFTHEORDERINCMPNO. 845/2023INC.C.NO.642/2017OFTHEJFMC NO.III,PERUMBAVOORDATED09/05/2023. AnnexureA8AFFIDAVITSWORNBYTHESISTER-IN-LAWOFTHE PETITIONER,PW3(CW3)INC.C.NO.642/2017OF THEJFMCNO.III,PERUMBAVOORDATED01/06/2023. ```