Disposed

Sakkeer Hussain v. Mohammed Koya

Kerala HC13 Mar 2014Crl.MC/711/2014

Case brief

AI extract

What is this about?

The High Court disposed of two criminal miscellaneous petitions filed by an accused husband regarding the release of a seized house key and movable articles used by children. The Court ordered the key be handed to the landlord to discharge rent liability while memory articles were confirmed to the woman unless the father later gains custody in Family Court. Dispute over advance rent payments was l

What did the court decide?

Directed SHO to hand over building key to landlord; confirmed interim custody of movables to mother with stipulation to return to father if custody awarded; left rent advance dispute open.

Sakkeer Hussain Vs Mohammed Koya — Child Custody and Guardianship | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935

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Crl.MC.No. 711 of 2014 ()

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C.M.P.NO.6665/2013 IN C.P.NO.63/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PALAKKAD

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PETITIONER/2ND RESPONDENT/ACCUSED:

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SAKKEER HUSSAIN, AGED 39 YEARS, S/O.IBRAHIM, DHANIYA MANZIL, SWATHI NAGAR, ALATHUR, PALAKKAD.

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BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)

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RESPONDENTS/PETITIONER & STATE:

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1. MOHAMMED KOYA,AGED 60 YEARS, S/O.M.K.KOYATTI, FATHIMA MANZIL, PARAKKUNNAM, PALAKKAD-678 671.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN- 682 031.

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R1 BY ADV. SRI.NIREESH MATHEW R2 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-03-2014,ALONG WITH CRMC.NO.836 OF 2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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Crl.MC.No. 711 of 2014 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEX-A:	PHOTO COPY OF THE JUDGMENT DATED 03.12.2013 IN W.P.(CRL.) NO.548/2013 OF THIS HON'BLE COURT.
ANNEX-B:	PHOTO COPY OF THE UNNUMBERED ORIGINAL PETITION TO BE FILED BEFORE THE FAMILY COURT, PALAKKAD.
ANNEX-C:	PHOTO COPY OF THE ORDER DATED 16.01.2014 IN C.M.P.NO.6665/2013 IN C.P.NO.63/2013 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE NO.III, PALAKKAD.
ANNEX-D:	PHOTO COPY OF THE S.T.CARGO BILL NO.1207801 DATED 21.12.2007.
ANNEX-E:	PHOTO COPY OF THE WARRANTY CARD DATED 17.04.2013 ISSUED BY THE VIGNESH ELECTRICALS, OLAVAKKODE.
ANNEX-F:	PHOTO COPY OF THE TELEPHONE BILL NO.2800403 DATED 07.01.2009 ISSUED BY THE BHARAT SANCHAR NIGAM LIMITED.
ANNEX-G:	PHOTO COPY OF THE CASH MEMO DATED 19.12.2012 ISSUED BY THE KANDATH GAS AGENCY.

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RESPONDENT(S)' ANNEXURES: NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

K.RAMAKRISHNAN, J.

Crl.M.C Nos.711 and 836 of 2014

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-------------------------Dated this the 13^th day of March, 2014

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O R D E R

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Both these applications were filed by the accused in CP 63/2013 on the file of the Judcial First Class Magistrate Court No.III, Palakkad against the common order passed in CMP 5169/2013 and 6566/2013 under Section 482 of the Code of Criminal Procedure.

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It was alleged in both these petitions that the petitioner is the husband of the deceased, who is the daughter of the first respondent and while she was residing in the rented house, she committed suicide and originally a case was

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registered for unnatural death as Crime No.553/2013 of Hemambika Nagar Police Station, Palakkad District and after investigation, it was revealed, according to the prosecution, that the offence under Section 498(A), 306 of Indian Penal Code were also committed and final report was filed incorporating those offences and implicating the present petitioner as accused and the learned Magistrate has taken cognizance of the case as CP 63/2013.

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During the investigation, the house from where the suicide was committed was sealed by the Police and the key

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Crl.M.C Nos.711 and 836 of 2014

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was kept under the custody of Station House Officer. The petitioner filed CMP 5169/2013 for release of the key and also interim custody of the movables kept in the house. The first respondent herein also filed CMP 6665/2013 for the same purpose. The learned Magistrate after hearing both sides, partly allowed the application filed by the respondents in both the cases and interim custody of 14 items were given to the respondents. As regards the key of the building is concerned, the learned Magistrate found that since there is dispute regarding the amount and the person who has taken the building on rent, the prayer for handing over the key was rejected, leaving open the parties to decide their rights in civil court. The orders are being challenged by the petitioner by filing the above two petitions under Section 482 of Code of Criminal Procedure.

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Considering the fact that due to the adamant attitude of the parties, unnecessary loss is likely to be caused in respect of the rented house, this Court felt that, that aspect alone can be considered by referring the parties to

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Crl.M.C Nos.711 and 836 of 2014

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mediation and it was posted for that purpose today. When the case came up for hearing, the counsel for the first respondent submitted that for that purpose, it need not be referred for mediation as his client has no objection in handing over the key to the landlord of the building and the dispute regarding the amount etc. can be decided among them separately.

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According to the counsel for the first respondent, more than Rs.30,000/- which was given as advance is due to the landlord towards rent arrears and he is prepared to pay the amount to the land lord.

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The counsel for the first respondent also submitted that in respect of the movables now ordered to be given to the first respondent, if ultimately the custody of the children was given to the father, who is the petitioner herein, he is prepared to hand over all these articles to the petitioner later. So for that purpose also, no mediation is required.

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The counsel for the petitioner submitted that who

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has taken the building on rent and who has paid the advance

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Crl.M.C Nos.711 and 836 of 2014

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and liability to pay rent etc. are yet to be decided. So no observation could be possible in this regard in this petition, which he wanted to be settled in the mediation.

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Since the first respondent is not willing for a mediation, and he is not prepared even talk with the petitioner herein, in view of the fact that his daughter died, no purpose will be served by sending the matter for mediation, as it will be returned as not fit for mediation.

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Considering the submission made by the counsel, this court feels that both these petitions can be disposed of by this Court.

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The learned Public Prosecutor submitted that since

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there is dispute regarding the eligibility to get the key between the parties, they did not hand over the key to them and it was with the Station House Officer. The learned Public Prosecutor also submitted that there is no necessity to keep the key with the Station House Officer. The Station House Officer is prepared to hand over the key to any person as directed by this court. The lower court cannot be found fault

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Crl.M.C Nos.711 and 836 of 2014

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for not handing over the key to any of the parties, because there is dispute regarding the entitlement of the key. So the court below was perfectly justified in rejecting the prayer for giving the key to any of the parties and relegated the parties to decide their rights in the appropriate forum.

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But considering the fact that both counsel are expressed their desire, that they do not want to keep the house, but they want only to hand over the key to the landlord, this Court also feels that keeping the key unnecessarily will only burden the parties of payment of rent to the landlord without using the same. Since both parties have expressed their willingness to hand over the key to the landlord of the building, this Court feels that a direction can be given to the Station House Officer to hand over the key of the building namely upstair of building No.7/114 Himagiri house, Malampuzha Road, Olavakkod Post, which was taken on rent as per Annexure A1 agreement to the land lord of the building namely K.K.Nandakumar, S/o K.Krishna Menon, Himagiri house, Malampuzha Road, Post Olavakod on proper

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Crl.M.C Nos.711 and 836 of 2014

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identification by both the parties, after getting necessary acknowledgment from him and produce that acknowledgment before the Third Additional Sessions Court, Palakkad where the case now pending as SC 99/14.

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As regards the movables are concerned, on going through the order of the Learned Magistrate, it is seen that most of the items are those being used by the children and it is also an admitted fact that children are now with the first respondent. The counsel for the petitioner in both the cases submitted that he has filed an application for custody of the children before the family court. The lower court granted interim custody of 14 items mentioned in the petition only on the ground that these items are being used by children and since the children are now with the first respondent, it is appropriate that those items can be handed over to the first respondent. So there is no legality committed by the court below in passing interim custody regarding the 14 items mentioned in the petition filed by the first respondent in respect of those articles. It is made clear that if ultimately

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Crl.M.C Nos.711 and 836 of 2014

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the custody of the children were given to the petitioner herein by orders of the family court, then the first respondent is liable to return those articles to the petitioner as they have to be enjoyed by the children alone.

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So giving such a clarification in the order of court below will be sufficient for disposing the petition in this regard. Since 14 items mentioned in the petition filed by the first respondent are still in the house, the Station House Officer with whom the key is now is directed to hand over the movables directed to be given as interim custody, if available in the building after taking inventory regarding the same and after getting necessary acknowledgment or Kachit regarding the same in tune with the order passed by the learned Magistrate in that regard. If an inventory is prepared and acknowledgment is obtained,that is directed to be produced before the Additional Sessions court, where the case is now pending as it is submitted by the counsel for the first respondent that the Additional Sessions Judge has already directed the Station House Officer to prepare an

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Crl.M.C Nos.711 and 836 of 2014

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inventory regarding the movables available in the building. So the petitions are disposed of as follows:

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i) The Station House Officer with whom, the key

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is now, is directed to hand over the key to the owner of the building, as identified by both the petitioners and the first respondent, the owner of the building, namely, K.K.Nandakumar, S/o K.Krishna Menon, Himagiri house, Malampuzha Road, Post Olavakod after getting necessary acknowledgment from him and produce the acknowledgment before the Third Additional Sessions Judge, Palakkad where the case is now pending as SC 99/14 .

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ii) The order of the court below directing the 14 items of movables directed to be given to the first respondent in both these applications is here by confirmed, but it is clarified that if it is ultimately found by the Family Court, before whom the application for custody of children is alleged to be pending that the petitioner as father is entitled to custody of the children

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Crl.M.C Nos.711 and 836 of 2014

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then the first respondent is bound to return these movables to the petitioner as the court below had handed over the movables to the first respondent only on the ground that the children are now with the first respondent.

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iii) The Station House Officer is directed to take an inventory of the movables ordered to be given as interim custody to the first respondent (as directed by the Additional Sessions Court, Palakkad as submitted by the counsel for the first respondent) before handing over the same to the first respondent herein and also before handing over the key of the building, to the land lord of the building as directed by this Court and also after ascertaining whether the first respondent had executed the bond and complied with other conditions as directed in the order of the lower court and produce the inventory and the receipt obtained from the first respondent before the Third Additional Sessions Court Palakkad in SC 99/2014 pending before that court.

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Crl.M.C Nos.711 and 836 of 2014

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iii) The question as to who is entitled to get the amount given as advance with the land lord of the building etc. are left open to be decided between the parties by approaching the appropriate forum.

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With the above direction and observations the petitions are disposed of.

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K.RAMAKRISHNAN, JUDGE

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jm/

Sakkeer Hussain v. Mohammed Koya

Case brief

What is this about?

What did the court decide?

Sakkeer Hussain v. Mohammed Koya

Case brief

What is this about?

What did the court decide?

What the court decided

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