Allowed

Shajimon v. State of Kerala

Kerala HC25 Mar 2019Crl.MC/4648/2018

Case brief

AI extract

What is this about?

The High Court allowed a petition challenging an order refusing to release Rs. 19 lakhs seized by police. The Court held that funds in court are for safe custody pending trial. It cited Supreme Court guidelines stating property must be restored to the original owner after the necessity to retain it ceases, directing the Magistrate to release the cash with conditions.

What did the court decide?

Impugned order set aside; Magistrate directed to release cash to petitioner by imposing conditions including security.

Shajimon Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2019)

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941

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Crl.MC.No. 4648 of 2018

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AGAINST THE ORDER IN CMP 1098/2018 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -I, ATTINGAL DATED 23-05-2018

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CRIME NO. 1896/2016 OF POTHENCODE POLICE STATION, THIRUVANANTHAPURAM

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PETITIONER/DE FACTO COMPLAINANT:

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SHAJIMON,

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AGED 32 YEARS, S/O. SHAHUL HAMEED, SHAJI COTTAGE, BEHIND BALARAMAPURAM POST OFFICE, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501.

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BY ADVS.SRI.G.P.SHINOD

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SRI.AJIT G.ANJARLEKAR

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SRI.GOVIND PADMANAABHAN

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SRI.RAM MOHAN.G.

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RESPONDENTS/COMPLAINANT & STATE:

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1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR AT THE HIGH COURT OF KERALA AT ERNAKULAM-682 031.

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2 THE STATION HOUSE OFFICER, POTHENCODU POLICE STATION, THIRUVANANTHAPURAM-695 501.

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3 ADDL.R3 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX KERALA, C.R BUILDING, I.S.PRESS ROAD, KOCHI-682018 (ADDL. R3 IS IMPLEADED AS PER ORDER DATED 29/08/2018 IN CRL.MA.8412/2018)

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ADDL.R4: SUJATHA, AGED 56 YEARS, D/O SARASAMMA, SUNIL BHAVAN, KULAPADA, MONDIYODE, UZHAMALAKKAL VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM-695542 (ADDL.R4 IS IMPLEADED AS PER ORDER DATED 5/2/19 IN CRL.M.A.3/18)

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Crl.MC.No. 4648 of 2018

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5 ADDL.R5: AMEEN, S/O. ASSANAR KANNU, AGED 28 YEARS, R C STREET,R C WARD,BALARAMPURAM THIRUVANANTHAPURAM-695501 (ADDL.R5 IS IMPLEADED AS PER ORDER DATED 5/2/19 IN CRL. M.A.3/18)

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BY ADVS.SRI.CHRISTOPHER ABRAHAM SRI.R.B.BALACHANDRAN

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R1 & R2 BY PUBLIC PROSECUTOR SRI. AJITH MURALI

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 4648 of 2018

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ORDER

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The petitioner assails the order dated 23.5.2018 in CMP No.1098 of 2018 in Crime No.1896 of 2016 of the Pothencodu Police Station passed by the learned Judicial Magistrate of First Class I, Attingal. By the said order, the learned Magistrate refused the request of the petitioner to release a sum of Rs.19 lakhs which was seized by the police in the said crime.

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As a matter of fact, the petitioner is the de facto complainant in the said crime. To purchase an item of property, the petitioner had amassed a sum of Rs.30 lakhs. One Sunil had stolen away the cash while they were returning back together. A complaint was promptly lodged before the Balaramapuram Police which was later made over to the Pothencode Police Station and was re-numbered.

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On 11.1.2017, Crime No.83 of 2017 of the Nedumangad Police Station was registered against the petitioner and his associates at the instance of Smt. Sujatha, the mother of the aforesaid Sunil. The allegation is that on 11.1.2017 at 7.30 am, the petitioner and others trespassed into her residential home and threatened her and her family members. A sum of Rs.24,400/- was also robbed by the

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Crl.MC.No. 4648 of 2018

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accused. Traumatized by the acts of the accused, her husband committed suicide by hanging himself. The crime was registered inter alia under Sections 452, 395 and 306 of the IPC.

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The petitioner as well as his employee were arrested in connection Crime No.83 of 2017. Based on the disclosure made by the 2^nd accused, a sum of Rs.19 lakhs was seized by the investigating officer and the same was produced before court. The petitioner filed an application for release of the amount. However, the said application

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was dismissed by the learned Magistrate holding that it would adversely affect the case of the prosecution.

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The above order is under challenge.

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I have heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

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Admittedly, Annexures-A and B would show that a sum of Rs.30 lakhs was stolen from the petitioner by one Sunil. The amount which was allegedly seized by the officer forms a portion of the said amount. The application filed by the petitioner was dismissed by the learned Magistrate accepting the contention of the investigating officer that the release of the amount would prove to be a handicap for a fair

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Crl.MC.No. 4648 of 2018 5

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disposal of the case. I fail to understand as to what purpose would be served in retaining a sum of Rs.19 lakhs in court. Section 451 of the Cr.P.C. empowers the criminal court to make orders for interim custody of the property produced before it during trial and inquiry. When the property is produced before the criminal court, regard being had to nature of the property so produced, the criminal court has a discretion to make such order as it thinks fit for the proper custody of such pending conclusion of enquiry or trial. The Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat [AIR 2003 SC 638] had occasion to issue extensive guidelines. It was held that it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for the return of the said vehicles, if required, at any point of time. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. The aspect of possession and the right of possession alone had to be considered by the court below in the ordinary course. Furthermore, the powers under Section 451 of the Cr.P.C. should be exercised expeditiously and judiciously as it would serve various salutary purposes. The Court below ought to have realized that the

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Crl.MC.No. 4648 of 2018

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owner of the article would suffer because of its remaining unused or by its misappropriation. The Court or the police would not be required to keep the article in safe custody and further, if the possession of article is handed over after preparing a proper mahazar, the same could have been used in evidence instead of its production before the Court during the trial.

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Having considered the relevant aspects, I am unable to sustain the order passed by the learned Magistrate.

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This petition will stand allowed and the impugned order is set aside. The learned Magistrate is directed to release the cash to the petitioner by imposing conditions which may include a direction to produce property security to the satisfaction of the court below.

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SD/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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//TRUE COPY// P.A. TO JUDGE

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IAP

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Crl.MC.No. 4648 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A A TRUE COPY OF THE F.I.R DATED 25-12-2016 IN CRIME NO. 1518 OF 2016 REGISTERED IN BALARAMAPURAM POLICE STATION, THIRUVANANTHAPURAM RURAL.

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ANNEXURE B	A TRUE COPY OF THE	F.I.R DATED 30/12/2016
	IN CRIME NO. 1896 POTHENCODU POLICE	OF 2016, REGISTERED IN STATION
ANNEXURE C	A TRUE COPY OF THE	F.I.R IN CRIME NO: 83 OF
	2017 OF NEDUMANGAD	POLICE STATION,
	THIRUVANANTHAPURAM	RURAL.

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ANNEXURE D	A TRUE COPY OF THE CASE DIARY IN CRIME NO. 83 OF 2017 OF POTHENCODU POLICE STATION
ANNEXURE E	A TRUE COPY OF CMP NO.2662/2017 PREFERRED BY THE PETITIONER BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE- II,NEDUMANGAD
ANNEXURE F	A TRUE COPY OF THE ORDER DATED 05/04/2017 IN CMP NO. 2662/2017 OF THE COURT OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-II,NEDUMANGAD.

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ANNEXURE G	A TRUE COPY OF THE	ORDER DATED 25/01/2018
	IN CRIMINAL MC NO.	8376 OF 2017 OF THIS
	HONOURABLE COURT.

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ANNEXURE H	A FREE COPY OF THE ORDER DATED 23/05/2018 IN CMP NO. 1098 OF 2018 IN CRIME NO. 1896/16 BEFORE THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I,ATTINGAL
ANNEXURE I	A TRUE COPY OF THE LETTER DATED 13/01/2017 ISSUED BY THE SECRETARY OF BALARAMAPURAM GRAMA PANCHAYAT TO THE PETITIONER.
ANNEXURE J	A TRUE COPY OF THE PAY-IN-SLIP DATED 05/06/2018 ISSUED BY THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LIMITED

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RESPONDENTS' EXHIBITS:

Shajimon v. State of Kerala

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Shajimon v. State of Kerala

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