Disposed

Kanakan v. State of Kerala

Kerala HC9 Aug 2012Crl.MC/2358/2012

Case brief

AI extract

What is this about?

The High Court held that an order denying interim custody of a seized vehicle is interim and not final. It directed the Magistrate to expedite disposal of the seized vehicle citing Supreme Court guidelines to prevent loss of value, and allowed the petitioner to re-agitate the claim if the vehicle is offered for auction.

What did the court decide?

Directed the Magistrate to expedite disposal/auction of the seized vehicle under SC guidelines and allowed petitioner to re-agitate claim if court observes auction steps or new claimants.

Kanakan Vs State of Kerala — Property and Title | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

¶4

THURSDAY, THE 9TH DAY OF AUGUST 2012/18TH SRAVANA 1934

¶5

Crl.MC.No. 2358 of 2012 (D)

¶6

CRIME.NO.668/2011/IN CMP.2895/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHENGANNUR.

¶7

PETITIONER/ACCUSED:

¶8

KANAKAN, AGED 40 YEARS, S/O.RAMACHANDREN, CHARUPURAYIDATHIL, KEEZCHERIMEL MURI, CHENGANNUR

¶9

BY ADVS.SRI.P.M.HABEEB SMT.FRINDA PAILY

¶10

RESPONDENT:

¶11

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031

¶12

BY PUBLIC PROSECUTOR SMT R REMA

¶13

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶14

LSN

¶15

Crl.MC.No. 2358 of 2012 (D)

¶16

APPENDIX

¶17

PETITIONER(S) EXHIBITS:

¶18

ANNEXURE A1: THE PHOTOCOPY OF THE AGREEMENT DATED 11-12-2010 ANNEXURE A2: THE AGREEMENT DATED 16-04-2012 BETWEEN THE PETITIONER AND THE REGISTERED OWNER. ANNEXURE A3: THE PHOTOCOPY OF THE RECEIPT DATED 30-04-2012. ANNEXURE A4: THE PHOTOCOPY OF THE NO OBJECTION CERTIFICATED DATED 25-06-2012. ANNEXURE A5: CERTIFIED COPY OF THE ORDER DATED 11-06-2012 IN CMP NO. 2895/2012.

¶19

RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

LSN

S.S.SATHEESACHANDRAN,J.

¶24

Crl.M.C.No. 2358 of 2012

¶25

Dated this the 9^th day of August, 2012

¶26

O R D E R

¶27

Challenge in the petition is against the Annexure A5

¶28

order passed by the learned Judicial First Class Magistrate-1, Chengannur, dismissing an application for release of a motor vehicle seized in a crime registered at Chengannur Police Station.

¶29

Petitioner is the accused in that crime, which is now under investigation. Crime was registered for offences punishable under Sections 420, 411, 468, 471 and 379 read with 34 of the Indian Penal Code. Petitioner was found in possession of a vehicle bearing registration No.TN-45 V 7126 with fake documents relating to such vehicle. Registration number allotted to the vehicle seized was later found to be KL-58 C 4205. Petitioner is involved in so many theft and abkari cases and he is a member of gang involved in stealing motor vehicles, is the case of the police. After seizure of the vehicle, and registration of the crime, on the materials gathered, investigating agency has added some more accused, and the investigation is now in

¶30

Crl.M.C..No. 2358 of 2012

¶31

¶32

progress.

¶33

Petitioner, producing two agreements and on the basis of remittance made and clearance certificate issued from a bank indicating that liabilities over the vehicle KL-58 C 4205 had been cleared by him, moved an application for its interim custody contending that he has title over such vehicle on transfer from the registered owner. Registered owner of the vehicle is stated to be one Harris, with whom he claimed of having entered into agreement for sale produced before the Court. One among the two agreements was entered into two years prior to the seizure of the vehicle and registration of the crime, and the other later. The order passed by the learned Magistrate shows that during the enquiry directions/orders were issued for appearance of the registered owner, who is alleged to have transferred the vehicle to the petitioner. That registered owner, namely, Harris, did not appear before the court or produce the registration certificate. The investigating agency has also contended that Harris is also a member of the racket operating in stealing motor vehicles, and he has also been added as an accused in the crime, which is now

¶34

Crl.M.C..No. 2358 of 2012

¶35

¶36

under investigation. Taking note of the circumstances, and having regard to the nature of the allegations imputed over the registration of the crime and arrest of the petitioner, who is stated to have been found in possession of fake documents relating to the vehicle which was found with a fake number affixed, and also the objections canvassed by the investigating agency resisting the release of the vehicle on interim custody, the learned Magistrate passed Annexure A5 order declining the request of the petitioner.

¶37

The learned counsel for the petitioner seeks one more chance to cause production of Registration Certificate of the vehicle, to establish his claim over the vehicle, for its release, submitting that if the vehicle is kept under sun and rain in course of time it would be rendered practically valueless. He had already discharged liability to the bank over the vehicle, which comes to more than Rs.6.5 lakhs, is the submission of the counsel to seek a further enquiry over the claim for interim custody.

¶38

After going through Annexure A5 order though I find, prima facie no reason to disturb the findings entered by the

¶39

Crl.M.C..No. 2358 of 2012

¶40

¶41

learned Magistrate, who, on the facts and circumstances and materials placed, has declined the request for interim custody of the vehicle, having regard to the fact that retention of the vehicle till disposal of the case is not advisable, the following directions are called for. So far as articles seized and produced before the court, expeditious disposal of the same is required. If it is not so done, it may render the articles totally worthless by the time the trial of the case is over. The Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujarat [2003(2)KLT 1089(SC)]

¶42

has given certain guidelines directing that expeditious disposal of articles seized and produced in criminal cases is required to meet the ends of justice. In the above reported decision, it has been held that to the extent possible orders are to be passed within two weeks over the articles seized and produced, to avoid loss of its value and damage being caused by its retention. That being so, after taking appropriate measures, following the guidelines given in that decision, preparing of a mahazar noting the particulars of the vehicle, taking its photograph, assessment of value by the competent authority etc., and such documents duly

¶43

Crl.M.C..No. 2358 of 2012

¶44

¶45

attested for the purpose of production during the trial for as evidence in the case, effective steps have to be taken for disposal of the vehicle at the earliest. In case such vehicle could not be released on interim custody to a rightful claimant and claim raised by the petitioner on any other petition is found to be not acceptable by the learned Magistrate its disposal by public auction has to be considered. However, if petitioner produce the R.C. Book and also cause the appearance of Harris, who is stated to the registered owner, and, if the Magistrate is satisfied of his claim, in the enquiry, steps may not be requires for disposal of the vehicle. The Magistrate then can examine whether interim custody of vehicle could be ordered rather than disposal of the vehicle.

¶46

I make it clear that Annexure A5 order turning down

¶47

the interim custody applied for by the petitioner should not be treated as final. The Magistrate can definitely examine the matter afresh if there are justifiable reasons to sustain the claim made by the petitioner. Orders passed under Section 451 of the Code of Criminal Procedure, needless to say, are of interim nature, which

¶48

Crl.M.C..No. 2358 of 2012

¶49

¶50

can be modified and varied by the court at different stages of the case, depending on the circumstances presented. At any rate, retention of the vehicle for completion of the investigation or till the trial is over, is not at all necessary, and not to be followed, as it would result in total deprivation and loss of value of that vehicle. The investigating agency shall take effective steps for permission of the court for sale by public auction, if no rightful claimant comes forward for interim custody of the vehicle.

¶51

I make it clear that the observations made above would not enable the petitioner who suffered Annexure A5 order in reagitating his claim for interim custody of the vehicle. However, if the investigating agency takes any step for sale of the vehicle, or any other claimant comes forward for having its interim custody, in the enquiry thereof, petitioner can also set forth his claim for such custody irrespective of Annexure A5 order passed against him.

¶52

The learned Magistrate is directed to take note of the observations made above and consider what further steps to be taken over the release/sale of the vehicle. In such proceedings,

¶53

Crl.M.C..No. 2358 of 2012

¶54

¶55

petitioner will also be given an opportunity to be heard and Annexure A5 order passed against him shall not be taken conclusively foreclosing his right to claim possession over the vehicle. However, it is open to the Magistrate to take note of the circumstances in turning down the application earlier also with reference to other factors presented, on his claim, if any made, over the vehicle involved in the case.

¶56

Subject to the above observations, petition is disposed of.

¶57

S.S.SATHEESACHANDRAN,JUDGE.

¶58

dlk

Kanakan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kanakan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Raja Vs State Pf Kerala

Anilkumar Vs State of Kerala

Mohammed Kutty Vs State of Kerala

Dr.N.Raveendran Vs State of Kerala

Athira Vs the State of Kerala

Sarat.S.Panickar Vs State of Kerala