Kerala High Court
Nagarajan vs State Of Kerala on 6 November, 2019
Equivalent citations: AIRONLINE 2019 KER 615, 2020 CRI LJ 827, (2019) 4 ALLCRILR 791, (2019) 4 KER LJ 853, (2019) 4 KER LT 641
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 06TH DAY OF NOVEMBER 2019 / 15TH KARTHIKA, 1941
Crl.MC.No.6937 OF 2019(F)
AGAINST THE ORDER IN CRMP 5831/2019 DATED 17-09-2019 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I,PALAKKAD
CRIME NO.250/2019 OF Walayar Police Station , Palakkad
PETITIONER/PETITIONER:
NAGARAJAN
AGED 47 YEARS
S/O. RAJAMANI, MANI NIVAS, SOORYA CHIRA, PUDUSSERY,
PALAKKAD.
BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/RESPONDENT & COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-31.
SRI C S HRITHWIK-SR PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
30.10.2019, THE COURT ON 06.11.2019 PASSED THE FOLLOWING:
Crl.M.C.No.6937/2019
2
"CR"
R.NARAYANA PISHARADI, J
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Crl.M.C.No.6937 of 2019
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Dated this the 6th day of November, 2019
ORDER
This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for setting aside Annexure-B order passed by the Judicial First Class Magistrate-I, Palakkad.
2. The petitioner is the owner of a small jewellery shop. On the morning of 06.08.2019, while opening his shop, two persons came on a motorcycle and snatched away the bag in his hand, which contained gold and silver ornaments worth Rs.9,00,000/- and they left the place on the motorcycle.
3. A case was registered as Crime No.250/2019 of Walayar police station under Section 392 read with 34 I.P.C in relation to the incident. One of the culprits was arrested on the Crl.M.C.No.6937/2019 3 same day and the stolen properties were seized from his possession. The ornaments were produced before the court.
4. The petitioner filed an application under Section 451 of the Code for getting interim custody of the ornaments. As per Annexure-A order, the learned Magistrate allowed the application on certain conditions. One of the conditions was that the petitioner shall not alter or dispose of the ornaments till the final disposal of the case.
5. The petitioner filed an application to delete the aforesaid condition and permit him to sell the ornaments. As per Annexure-B order, learned Magistrate dismissed that application on the ground that the property involved in the case is highly necessary at the time of evidence for identification.
6. Heard learned counsel for the petitioner and the learned Public Prosecutor.
7. Learned counsel for the petitioner submitted that the petitioner is not a person conducting large scale business in gold or silver ornaments. It is submitted that the ornaments robbed from his possession constitute the entire stock in his shop. It is Crl.M.C.No.6937/2019 4 also submitted that, if the petitioner is not permitted to sell the ornaments in the course of his business, it would affect his livelihood.
8. Learned Public Prosecutor has fairly submitted that the petitioner is the owner of a small jewellery shop. He would state that the prayer for selling the ornaments can be allowed if sufficient safeguards could be taken to retain evidence regarding the identity of the stolen property.
9. Section 451 of the Code reads as follows:
"451. Order for custody and disposal of property pending trial in certain cases.- When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of."
10. In Basavva Kom Dyamogouda Patil v. State of Mysore : AIR 1977 SC 1749, the Supreme Court has held as Crl.M.C.No.6937/2019 5 follows:
"The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. 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. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. ..... The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Crl.M.C.No.6937/2019 6 Court regarding its disposal" (emphasis supplied).
11. In Sunderbhai Ambalal Desai v. State of Gujarat :
(2002) 10 SCC 283, the Supreme Court has considered the scope of invoking Section 451 of the Code in respect of valuable articles, wherein it has been held as follows:
"11. With regard to valuable articles, such as golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted.
In such cases, Magistrate should pass appropriate orders as contemplated under S.451, Cr.P.C. at the earliest.
12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after: (1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security.Crl.M.C.No.6937/2019 7
13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under S.451, Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under S.451, Cr.P.C. to impose any other appropriate condition".
12. Learned Magistrate has passed Annexure-A order in the light of the decision of the Apex Court in Sunderbhai (supra). But, learned Magistrate dismissed the application for granting permission for sale of the ornaments on the ground that they would be required to be produced before the court at the time of evidence for identification.
13. The quantity of gold ornaments comes to 225 grams and the quantity of silver ornaments comes to three kilograms. There is no rival claimant for the ornaments. They were robbed from the possession of the petitioner. The ornaments are the Crl.M.C.No.6937/2019 8 articles of business conducted by the petitioner. It would be harsh to insist that, he shall keep them in his possession, without any change till the conclusion of the trial of the case, which may even take several years.
14. Section 451 of the Code permits sale of property, which is subject to speedy and natural decay, pending the conclusion of the inquiry or trial. Can property, which is not subject to speedy and natural decay, be permitted to be sold before the conclusion of the trial of the case? Two things are very important. The interest of the owner of the property shall be protected. At the same time, prosecution case cannot be jeopardized on account of the absence of physical evidence during the trial.
15. Section 451 of the Code states that, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. The expression "if it is otherwise expedient so to do'' in Section 451 of the Code empowers the Court to dispose of the Crl.M.C.No.6937/2019 9 property during enquiry or trial, if the situation so warrants. The provision empowers the Court to sell or dispose of even a property, which is not subject to speedy and natural decay, if the court is satisfied that it is expedient to do so. The expression "if it is otherwise expedient so to do'' confers a discretion upon the court to order sale of a property other than a property which is subject to speedy and natural decay. But, the discretion has to be exercised judiciously and depending upon the facts and circumstances of each case.
16. In this context, it is advantageous to refer to the observations made by the Karnataka High Court, in K.W. Ganapathy v. State of Karnataka (2002 Cri.L.J 3867), which read as follows:
"6. Irrespective of the fact whether the properties have evidentiary value or not it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to Crl.M.C.No.6937/2019 10 the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to. The rightful owners, who have lost the property by an act of crime even after detection and recovery are continued to be prevented from beneficial possession and enjoyment of the same by the archaic conditions imposed as a regular routine despite the changed context of scientific developments.
7. To illustrate, a situation one X loses gold jewellery by theft. The police successfully detect and discover the gold jewellery the same is produced before the Court. Production of gold jewellery and marking of the same in evidence to prove the same as corpus delecti is one of the insistence of law as a part of fair trial. Even after Crl.M.C.No.6937/2019 11 the gold jewellery is given to the custody of X to deprive him by imposing the condition of non- alienation from exercise of right of ownership for unreasonable length of time would be too harsh and one sided, and a nonchalant approach towards the victims of crime. It may be that X requires the gold jewellery for the purpose of the marriage of his daughter or may be that he may requires funds for medical treatment or other genuine needs, when he has no alternative source except by sale of the gold jewellery, the condition of non- alienation in such situation would be onerous and unreasonable. The production of property during the trial having incriminating value is a insistence to secure the rights of accused as a part of fair trial. At the same time, when there is a possibility of having a secondary evidence of the said property, it is no longer necessary in law to insist that the property to be kept intact without alteration and non-alienation".
17. The production of property, which forms physical evidence, may become necessary during the trial of the case. But, it is not necessary that the original property inevitably has to be preserved and produced. Reception of secondary evidence is permissible, as held in Sunderbhai (supra). Instead of Crl.M.C.No.6937/2019 12 producing the original property, production of the photographs of the property, depicting all features of the same, would be sufficient. Identification of the photographs of the property, along with proof of its particulars, in the form of mahazar giving clear description of the nature, dimensions and features of the same, serves as a substitute for identification of the real property during the trial of the case. In Sunderbhai (supra), the Apex Court has held that taking photographs of the material object and obtaining the signature of the complainant and also of the accused thereon and keeping them in the case records to be exhibited at the time of trial, would serve the purpose. Thus, the interest of the prosecution, the interest of the owner of the property, the need of the prosecution to produce the property as evidence during trial and the right of the accused would be protected.
18. At the same time, sale of property, which is not subject to speedy and natural decay, shall not be permitted or ordered as a matter of course. It is necessary that the court shall be satisfied that it is expedient to sell the property in the Crl.M.C.No.6937/2019 13 given set of facts and circumstances. It is only when retention of a property with its owner, without the liberty of alienation, would cause undue hardship to him, that sale of it can be permitted or ordered.
19. In the instant case, if the petitioner is not granted permission for sale of the ornaments, it would cause undue hardship to him. He may have to even stop his business. In such circumstances, I find that the petitioner can be given permission to sell the gold and silver ornaments mentioned in Annexure-A order of the learned Magistrate, if he has already complied with the other conditions mentioned in that order. But, it is necessary to take care that, before permitting sale of the ornaments, the details of the ornaments with their full description shall be recorded.
20. In the result, the petition is allowed. Annexure-B order passed by the learned Magistrate is set aside. The petitioner is granted permission for sale of the gold and silver ornaments mentioned in Annexure-A order, if he has already complied with the other conditions therein and on preparing an Crl.M.C.No.6937/2019 14 inventory showing the details of the ornaments with their full description including the weight. The photographs of the ornaments clearly showing their nature and make shall also be taken and they shall form part of the records of the case. The petitioner and the accused, if available, shall sign on the photographs and in the inventory prepared. If the accused is not available or if he refuses to sign on the photographs or in the list of inventory, that fact shall be endorsed on them.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr/05/11/2019 Crl.M.C.No.6937/2019 15 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE A TRUE COPY OF THE ORDER IN CRL.M.P. NO.5252/2019 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, PALAKKAD DATED 22.08.2019.
ANNEXURE B CERTIFIED COPY OF THE ORDER DATED 17.09.2019 IN CRL M.P. NO.5831/2019 PASSED BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, PALAKKAD IN CRIME NO.250/2019 OF WALAYAR POLICE STATION, PALAKKAD.
RESPONDENT'S EXHIBITS: NIL TRUE COPY PS TO JUDGE