Kerala High Court
Santha Joseph vs State Of Kerala on 30 March, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 919 of 2011()
1. SANTHA JOSEPH, W/O. JOSEPH, AGED 62,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. SHYLAJA, AGED 33,
For Petitioner :SRI.K.C.CHARLES
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/03/2011
O R D E R
THOMAS P.JOSEPH, J.
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Crl. M.C. Nos.919 and 938 of 2011
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Dated this the 30th day of March, 2011
O R D E R
Fight is for interim custody of a WagonR Car, indisputably belonging to the deceased son of petitioner and who disputedly is the husband of second respondent. The son of petitioner expired on 12.06.2010. Dispute started thereafter. It is alleged that petitioner and others forcibly took the Car from the custody of second respondent and thereon second respondent preferred a complaint based on which Thrissur West Police registered Crime No.904 of 2010 for offence punishable under Section 379 of the Indian Penal Code against petitioner and others. In the course of investigation the police seized the vehicle from the custody of petitioner and produced the same before learned Magistrate. Petitioner and second respondent preferred petitions - C.M.P. Nos.8687 and 8688 of 2010 seeking interim custody of the vehicle. Learned Magistrate considered the petitions and passed the impugned order allowing petition filed by second respondent and gave custody of the vehicle to her subject to conditions under Section 451 of the Code of Criminal Procedure (for short, "the CRL.M.C. Nos.919 & 938 of 2011 -: 2 :- Code"). Dismissal of the C.M.P. No.8687 of 2010 is challenged in Crl. M.C. No.919 of 2011 while the order allowing C.M.P. No.8688 of 2010 is under challenge in Crl. M.C. No.938 of 2011. Learned counsel for petitioner contends that there is absolutely no evidence to show, either that second respondent is legally married to the son of the petitioner or that she was in possession and enjoyment of the Car and that petitioner is the legal heir of her deceased son entitled to own and possess the said Car. It is contended that even if contention of second respondent is accepted, petitioner is a co-owner of the Car and hence learned Magistrate should not have divested her of possession of the Car since admittedly police seized the Car from her. Learned counsel placing reliance on the decision in V.Prakashan v. K.P. Pankajakshan and Another (1985 Crl. L.J. 951) has contended that the proceedings are of a quasi civil nature and discretionary power should have been exercised by the learned Magistrate judicially. It is prayed that interim custody of the vehicle may be given to the petitioner.
2. Learned counsel for second respondent contended that there is sufficient material to show that vehicle was purchased by the husband of second respondent (son of CRL.M.C. Nos.919 & 938 of 2011 -: 3 :- petitioner) and until his death on 12.06.2010 it was being used by him and the second respondent.
3. The question whether there is a legal marriage or not as disputed by the petitioner is to be established in the trail court. According to the learned counsel for the second respondent, the police records show that petitioner had forcibly taken the Car from second respondent. It is contended that in a proceeding under Sec.451 of the Code, the police records could be looked into and the bar under Sec.162 of the Code does not apply.
4. Under Sec.451 of the Code the court is to pass such order as it thinks fit for proper custody of property pending inquiry or conclusion of trial while under Sec.452 of the Cod the court has to find who is entitled to possess the vehicle. In other words in considering interim custody of the vehicle under Sec.451 of the Code what the court is required to decide is only whether it is proper to entrust custody of the vehicle to any of the contesting parties. The records submitted by the police is to the effect that the vehicle was in the custody of second respondent after death of her husband on 12.06.2010 and while so it was taken by petitioner and others for which Crime No.904 of 2010 was CRL.M.C. Nos.919 & 938 of 2011 -: 4 :- registered.
5. This Court inKrishna Pillai v. Public Prosecutor (1987 KLT 366) while dealing with an order under Sec.452 of the Code held that police records can be looked into for the purpose of deciding as to who is entitled to possession of the vehicle. There is no reason why that principle should not be applied to a proceeding under Sec.451 of the Code.
6. In the case on hand police records are to the effect that son of petitioner and second respondent were living together and using the Car in question. After death of son of petitioner (husband of second respondent) she took forcible possession of the vehicle which resulted in registration of the crime for offence under Sec.379 of the IPC. Thus going by the police records which I find no reason to reject at this stage proper person to be in custody of the vehicle is the second respondent. That is what the court below also said. I find no reason to interfere. However it is seen that while imposing condition learned Magistrate has not directed that the second respondent shall not dispose of or transfer ownership or possession of vehicle to any other person or encumber the same. Having regard to the nature of contentions advanced it is CRL.M.C. Nos.919 & 938 of 2011 -: 5 :- appropriate that those conditions are also imposed on the second respondent.
7. It is submitted by learned counsel for petitioner that certain amount is due to the financier in respect of the vehicle in question. Petitioner expressed desire to clear the liability. Learned counsel for second respondent submitted that second respondent is prepared to clear the liability if any. First option is to be given to the second respondent since she is now given custody of the vehicle and allegedly was in custody before also. In case second respondent does not clear the liability, it is open to the petitioner to do so and if ultimately found necessary realize such amount from the second respondent if she is otherwise entitled to that course.
Resultantly, Criminal Miscellaneous Cases are dismissed. But apart from the conditions imposed by the learned Magistrate second respondent is directed that until disposal of the case before the learned Magistrate and final order regarding custody of the vehicle is passed, the second respondent shall not dispose of in any manner, transfer ownership or possession of the vehicle to any other person or encumber the same and produce the CRL.M.C. Nos.919 & 938 of 2011 -: 6 :- vehicle as and when directed to do so, by the learned Magistrate. These conditions shall be treated as part of the bond executed by the second respondent in the trial court.
THOMAS P. JOSEPH, JUDGE.
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