Uthaman Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** ## **Crl.MC.No.2651 OF 2020(B)** **AGAINST THE ORDER/JUDGMENT IN CP 24/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA** **CRIME NO.89/2020 OF Kattakada Police Station , Thiruvananthapuram** ## **PETITIONER/PETITIONER:** **UTHAMAN NAIR, AGED 35 YEARS, S/O. RAVENDRAN, PADMINI NIVAS, THEKKE KIZHAMACHAL, CHEMBANAMCOE PARACHAL MURI, KULATHUMMAL VILLAGE, KATTAKADA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.K.K.DHEERENDRAKRISHNAN SMT.N.P.ASHA** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI 682 031.** ## **OTHER PRESENT:** **SRI. BINEESH E.C. (P.P.)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.06.2020, ALONG WITH Crl.MC.2653/2020(B), Crl.MC.2666/2020(C), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** **Crl.MC.No.2653 OF 2020(B)** **AGAINST THE ORDER/JUDGMENT IN CMP 1175/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA** **CRIME NO.89/2020 OF Kattakada Police Station , Thiruvananthapuram** ## **PETITIONER/PETITIONER:** **THANKAMANI, AGED 40 YEARS, W/O.STANLEY JOHN, KATTAYIKONAM, CHARUPARA, PARACHAL MURI, KULATHUMMAL VILLAGE, KATTAKADA, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.K.K.DHEERENDRAKRISHNAN SMT.N.P.ASHA** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.06.2020, ALONG WITH Crl.MC.2651/2020(B), Crl.MC.2666/2020(C), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** **Crl.MC.No.2666 OF 2020(C)** **AGAINST THE ORDER/JUDGMENT IN CMP 1174/2020 DATED 29-02-2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA** **CRIME NO.89/2020 OF Kattakada Police Station , Thiruvananthapuram** ## **PETITIONER/PETITIONER:** **THANKAMANI, AGED 40 YEARS,** **W/O.STANLEY JOHN, KATTAYIKONAM, CHARUPARA, PARACHAL MURI, KULATHUMMAL VILLAGE, KATTAKADA, THIRUVANANTHAPURAM DISTRICT** **BY ADV. SRI.K.K.DHEERENDRAKRISHNAN** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031** ## **OTHER PRESENT:** **SRI. UDAYAKUMAR.K.B. (P.P.)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.06.2020, ALONG WITH Crl.MC.2651/2020(B), Crl.MC.2653/2020(B), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 4** ## **ORDER** ## **[ Crl.MC.2651/2020, Crl.MC.2653/2020, Crl.MC.2666/2020 ]** ## **Dated this the 26th day of June 2020** These matters being interconnected, they are disposed of by a common order. 2. Petitioner in each of the Crl.M.Cs claims to be the owner of the respective vehicle involved in Crime No.89 of 2020 of Kattakada Police Station registered for the offences under Sections 147,148,447,302,379,212 and 201 r/w Section 149 IPC. 3. Three vehicles are involved in the crime and seeking interim custody of each of the vehicle, persons claiming to be the respective owner thereof, sought interim custody before JFCM Court, Kattakada invoking Section 451 of the Cr.P.C. All the three applications were dismissed by a common order dated 29.2.2020 upholding the objection **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 5** raised by the investigating officer against release of the vehicle on the ground that they were used for commission of the offences. 4. The prosecution case is that two tipper lorries were used by some of the accused for removing earth from a land and when the same was resisted by the deceased Sangeeth, he was attacked by one of the accused with the bucket of JCB causing his death. 5. The petitioner in CMP No.1638 of 2020 claimed interim custody of Swaraj Mazda tipper lorry bearing Reg.No. KL-20C-5407 which was opposed by the investigating officer. The JCB bearing Reg.No.KL-74/4500 was also sought to be released on interim custody in CMP No.1175/2020 by another petitioner claiming to be its owner which too was dismissed on the opposition of the investigating officer. Similar claim for release was made in CMP No.1174/2020, in respect of tipper lorry bearing **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 6** Reg. No.KL-20K 3145 which also met with the same fate. 6. The reason adopted by the learned Magistrate for refusing custody of the vehicles is that if weapon of offence is released, that by itself will lead to destruction of a valuable evidence as to the physical condition of the vehicles and thereby defeat the very trial itself. It was also observed that production of any secondary evidence in lieu of the vehicles themselves, may not suffice. 7. I heard the learned counsel for the petitioners and the learned Public Prosecutor. 8. The learned Public Prosecutor supported the impugned order contending that a vehicle used as a weapon of offence cannot be released on interim custody since it would affect the trial of the case itself. In this respect, a decision of Allahabad High Court reported in _**Sarjoo Prasad v.**_ **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 7** _**State of UP (1990 KHC 1075)**_ was cited before me. I find my way difficult to read such a proposition of law into the decision cited before me. On the other hand, looking at Explanation(b) to Section 451 of the Cr.P.C, it could be seen that the provision covers and extends even to a vehicle or property which is reportedly used as a weapon of offence also. The basic policy of law appears in favour of preserving the property rather than allowing it to be exposed to weather conditions while being in the custody of police, irrespective of whether it was used as weapon of offence. The decision of the Hon'ble Supreme Court in _**Sundarbhai Ambalal Desai v. State of Gujarat (2003 KHC 535)**_ also makes this legal position transparently clear. 9. At the same time, there may be occasions when the interim custody of a vehicle used as weapon of offence could be justifiably refused in case detention of the vehicle may be required in **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 8** connection with progress of the investigation. That is not the case on hand in as much as it is submitted by the learned Public Prosecutor himself that final report was laid before the learned Magistrate after completion of investigation. Therefore, need for detention of these three vehicles in the police station for any purpose connected with the investigation does not arise in this case. 10. As to the apprehension expressed by the learned Magistrate that the vehicles if released, would lead to loss of the very evidence of their involvement in the crime is also not well founded since Section 451 of Cr.P.C makes adequate provision for recording of evidence as to the physical and identifying features as well as the condition of the vehicles before their release. This provision is further reinforced in Sunderbhai Ambalal's case cited supra and the said decision **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 9** provides in paragraphs 12 and 13 for preparation of detailed panchanamma (mahazar) of the concerned articles, taking of photographs counter signed by parties and execution of bond. 11. In view of what is discussed above, I am fully satisfied that the impugned orders passed by the learned Magistrate are not consistent with the view taken by the Hon'ble Supreme Court in Sunderbhai Ambalal's case and the settled legal position being uniformly followed by all the courts. Therefore, the impugned orders are set aside and vehicles are hereby ordered to be released on interim custody to the persons entitled to possess them. 12. I notice that the learned Magistrate has not examined the question as to whether the applicants before her are persons entitled to possession of vehicles by looking into necessary documents. Therefore, the matter has go back to **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 10** the court below for fresh enquiry for this limited In the result, these Crl.M.Cs are allowed setting aside the three impugned orders dated 29.2.2020. The learned Magistrate will verify as to whether the applicants seeking custody are persons entitled to possession of the vehicles and after due satisfaction being arrived at, shall release the vehicles in accordance with the guidelines pronounced in Sundarbhai Ambalal Desai's case. In any view of the matter, the bonds executed by parties shall inter alia, contain an undertaking that the vehicles will not be taken outside the limits of Thiruvananthapuram District without prior permission of the learned Magistrate. The bonds should also provide that the vehicles will not be used for commission of any criminal offences. It shall further be stipulated that the vehicles shall not be transferred to any person nor **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 11** be subjected to any alteration or modification changing the physical features and condition of the vehicles affecting their identity. The learned Magistrate will be at liberty to add any other appropriate conditions, if necessary, exercising due discretion in the matter in accordance with law. The petitions for interim custody shall, however, be disposed of within a period of one month from the date of receipt of a copy of this order. Sd/- **T.V.ANILKUMAR, JUDGE** pm **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 12** ## **APPENDIX OF Crl.MC 2651/2020** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A – TRUE COPY OF R.C.BOOK OF THE PETITIONER'S VEHICLE BEARING NO.KL-20C-5407** **ANNEXURE-B - TRUE COPY OF THE ORDER DATED 13.5.2020 IN C.M.P.NO.1638/2020 IN C.P.NO.24/2020 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAKADA** **RESPONDENT'S EXHIBITS: NIL** **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 13** ## **APPENDIX OF Crl.MC 2653/2020** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF R.C BOOK OF THE PETITIONER'S VEHICLE BEARING NO.KL74-4500 ANNEXURE B TRUE COPY OF THE ORDER DATED 29.2.2020 IN C.M.P.NO.1175/2020 IN CRIME NO.89/2020 OF KATTAKADA POLICE ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAKADA** **RESPONDENT'S EXHIBITS: NIL** **Crl.MC.2651/2020, Crl.MC.2653/2020,** **Crl.MC.2666/2020 14** ## **APPENDIX OF Crl.MC 2666/2020** **PETITIONER'S/S EXHIBITS: ANNEXURE A A TRUE COPY OF R.C BOOK OF THE PETITIONER'S VEHICLE BEARING NO.KL-02-K-3145 ANNEXURE B TRUE COPY OF THE ORDER DATED 29.02.2020 IN CMP NO.1174/2020 IN CRIME NO.89/2020 OF KATTAKADA POLICE STATION ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAKADA** **RESPONDENT'S EXHIBITS: NIL**