Kerala High Court
Muhammed Saleem vs State Of Kerala on 28 July, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 28TH DAY OF JULY 2020 / 6TH SRAVANA, 1942
Crl.MC.No.604 OF 2020(E)
AGAINST THE ORDER/JUDGMENT IN CMP 457/2020 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -II,PALAKKAD
CRIME NO.668/2019 OF Town North Police Station , Palakkad
PETITIONER/PETITIONER:
MUHAMMED SALEEM,
AGED 37 YEARS,
S/O. MUHAMMED HANEEFA, CHOLA (H), TIRURKAD P. O,
ANGADIPURAM, MALAPPURAM DISTRICT.
BY ADVS.
SRI. M. MUHAMMED SHAFI
SMT. T. RASINI SHAFI
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
2 SHINY,
W/O. DILEEP, VADAKKEDATH HOUSE, JOSEPH JUNCTION,
AVALUMKUNNU P. O, ALAPPUZHA DISTRICT - 688 006.
3 ARAVIND M,
S/O. MADHUSOODHANAN V. N, KANDATHIL HOUSE,
ATHIRAPALLY P. O, ALAPPUZHA DISTRICT - 688 521.
4 DINU S. NAIR,
S/O. SIVADHASAN NAIR, DINU BHAVANAM, MUHAMMA P. O,
ALAPPUZHA DISTRICT - 688 525.
SRI. K. B. UDAYAKUMAR, GP
R2 - SRI. S. SANAL KUMAR
- SMT. BHAVANA VELAYUDHAN
- SMT. T. J. SEEMA
R3 - R4, SRI. K. C. SUDHEER
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
28.07.2020, ALONG WITH Crl.MC.2674/2020(D), THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
Crl.MC.Nos.604 & 2674 OF 2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 28TH DAY OF JULY 2020 / 6TH SRAVANA, 1942
Crl.MC.No.2674 OF 2020(D)
AGAINST THE ORDER/JUDGMENT IN CMP 425/2020 DATED 17-01-2020 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -II,PALAKKAD
CRIME NO.668/2019 OF Town North Police Station , Palakkad
PETITIONER/PETITIONER:
SHINY,
AGED 50 YEARS,
W/O. DILEEP, VADAKKEDATH HOUSE,
JOSEPH JUNCTION, AVALUMKUNNU P. O,
ALAPPUZHA DISTRICT - 688 006.
BY ADV. SRI. S. SANAL KUMAR
RESPONDENT/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
2 MUHAMMED SALIM,
AGED 37 YEARS,
S/O. MUHAMMED HANEEFA, CHALA HOUSE,
TIRURKAD P. O, ANGADIPURAM,
MALAPPURAM DISTRICT.
SRI. K. B UDAYAKUMAR, GP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
28.07.2020, ALONG WITH Crl.MC.604/2020(E), THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
Crl.MC.Nos.604 & 2674 OF 2020
3
ORDER
Dated this the 28th day of July 2020 Common order in Crl. M.C Nos.604 & 2674 of 2020.
2. The petitioner in Crl.M.C No.2674 of 2020 seeks a direction to be issued to Judicial First Class Magistrate Court - II, Palakkad to consider and dispose of CMP No.425 of 2020 filed by her under Section 451 of Cr.P.C in crime No.668/2019 in Town North Police Station, Palakkad. Reference to 'petitioner' hereunder, unless the context otherwise requires, shall mean petitioner in Crl. M.C No.2674 of 2020.
3. She claims to be a registered owner of KL-04 AL 7908 Maruti Ertiga and filed CMP No.425 of 2020 seeking interim custody of the vehicle alleging that her vehicle is kept in the custody of police exposed to sunlight and rain. Her grievance is that the learned Magistrate does not take up her application for interim custody for consideration and dispose it of. It appears that the 2nd respondent who is the de facto complainant in crime No.668 of 2019 has approached this Crl.MC.Nos.604 & 2674 OF 2020 4 Court with Crl.M.C No.604 of 2020 seeking an order interdicting the learned Magistrate from deciding the interim custody application before the completion of entire investigation of the crime. Therefore the Crl. M.C No.604 of 2020 filed by the 2nd respondent was also taken up today for consideration along with Crl. M.C No.2674 of 2020.
4. When Crl. M.C. No.604 of 2020 was taken up, there was nobody to represent the petitioner in that case. I heard the learned counsel for the petitioner in Crl.M.C No.2674 of 2020 and the learned Public Prosecutor.
5. It appears that in addition to the vehicle in respect of which the petitioner seeks interim custody, there are two more vehicles involved in the crime and the registered owners of those two vehicles also already moved the learned Magistrate with similar petitions seeking interim custody under Section 451 of Cr.P.C.
6. The contention of the petitioner in Crl. M.C No.604 of 2020 is that none of the vehicles for which the interim custody was sought, should be released to the persons claiming to be the registered owners before completion of Crl.MC.Nos.604 & 2674 OF 2020 5 investigation since it would cause prejudice to the investigation. It is contended that a huge amount of Rs.60 lakhs had been robbed from his custody along with a car, by the accused persons in the crime and only part of the amount could be recovered so far. It is further contended that the registered owners are also persons involved in the crime having conspired with the accused in the crime. Another contention is that if vehicles are released forthwith, there is possibility of accused persons and the registered owners colluding together and stifling the prosecution case.
7. The learned Public Prosecutor submitted a statement of facts as instructed by this Court.
8. Under Section 451 of the Cr.P.C the sole question that requires to be examined by the court considering the interim custody is whether the claimants are entitled to possession or not. The very purpose of the section is to preserve the property and prevent it from perishing before conclusion of trial. Going by Sundarbhai Ambalal Desai v. State of Gujarat [2002(10) SCC 283] cited before me by the learned counsel for the petitioner, expeditious orders releasing Crl.MC.Nos.604 & 2674 OF 2020 6 vehicles have to be passed so as to prevent the condition of the vehicle from perishing. Interim custody of vehicle could be granted notwithstanding it being a property regarding which offence appears to have been committed. This is clear from explanation (b) to Section 451 of the Cr.P.C. which is extracted hereunder:-
"(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."
9. It is also a matter of concern of the court ordering release of the vehicle to ensure that the release of property will not affect or prejudice the ongoing investigation in any manner. Going by the statement of facts submitted by the learned Public Prosecutor, it is not indicated as to how the release of the vehicle will affect or prejudice the investigation. There is no specific mention anywhere in the statement that any of the registered owners have got any complicity in the crime. Whether the release of the vehicles will impair the investigation is a matter which has to be considered by the learned Magistrate before whom the applications seeking interim custody are pending. I fail to understand as to how Crl.MC.Nos.604 & 2674 OF 2020 7 the 2nd respondent, de facto complainant would be entitled to object to release of the vehicles when he has no locus standi under law to appear before the court and oppose the release.
10. After hearing the learned counsel for the petitioner and the learned Public Prosecutor, I am satisfied that the learned Magistrate has no obligation to hear the de facto complainant for deciding CMP No.425 of 2020 filed by the petitioner. It is enough if appropriate decision in the matter is taken by the learned Magistrate after hearing the investigating officer alone. The 2nd respondent, de facto complainant is not entitled to heard so long as he does not advance any rival interest or claim in respect of any of the vehicles. However, there is nothing wrong if the similar interim applications filed by the other two registered owners are also taken up by the learned Magistrate for consideration along with CMP No.425 of 2020.
In the result, Crl. M.C No.2674 of 2020 is allowed and the Crl. M.C No.604 of 2020 is dismissed. It is hereby directed that the learned Magistrate shall hear and dispose of CMP No.425 of 2020 along with the other two interim Crl.MC.Nos.604 & 2674 OF 2020 8 applications filed by the concerned registered owners after hearing the applicants and the investigating officer and also examining the question as to whether the release of the vehicles will in any manner affect or prejudice the investigation. The applications for interim custody shall be disposed of within a period of three weeks from the date of receipt of a copy of this common order.
Sd/-
T.V.ANILKUMAR JUDGE SPR Crl.MC.Nos.604 & 2674 OF 2020 9 APPENDIX OF Crl.MC 604/2020 PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME
NO.668/2019 OF TOWN NORTH POLICE
STATION, PALAKKAD.
ANNEXURE A2 TRUE COPY OF THE APPLICATION IN
CMP.457/2020 OF JFCM COURT - II,
PALAKKAD.
RESPONDENT'S/S EXHIBITS: NIL.
Crl.MC.Nos.604 & 2674 OF 2020
10
APPENDIX OF Crl.MC 2674/2020
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 A TRUE COPY OF THE REGISTRATION
CERTIFICATE OF THE VEHICLE BEARING
REGISTRATION NO.KL04AL7908.
ANNEXURE A2 A TRUE COPY OF THE CERTIFICATE OF
INSURANCE OF VEHICLE NO.KL04AL7908.
ANNEXURE A3 A TRUE COPY OF THE FIR IN CRIME
NO.668/2019 OF TOWN NORTH POLICE
STATION, PALAKKAD DATED 20.12.2019.
ANNEXURE A4 A TRUE COPY OF THE CMP NO.425/2020
FILED BY THE PETITIONER BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE - II,
PALAKKAD DATED 17.01.2020.
RESPONDENT'S/S EXHIBITS: NIL.