Kerala High Court
Joseph S/O.Joseph vs Neelakantan on 11 January, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933
CRMC.No. 4427 of 2003 ( )
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CRRP.24/2002 of ADDL. SESSIONS COURT (SPL. COURT), KOTTAYAM
C.M.P.NO.1657/1999 IN CC.37/1995 of J.M.F.C.,VAIKOM
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PETITIONER(S)/PETITIONER/PETITIONER :-
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JOSEPH S/O.JOSEPH,
VANIAM PARAMBIL HOUSE,
MUNCIPAL WARD NO.2.
BY ADV. SRI.S.RADHAKRISHNAN
RESPONDENT/RESPONDENT/RESPONDENT :-
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1. NEELAKANTAN, S/O.KASTHURI RANGAN,
THEKKE VELUTHEDATHU MADATHIL VEEDU,
NADUVILE MURI, NADUVILE VILLAGE, VAIKOM.
2. STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
R1 BY SRI.A.M.THOMAS
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
11-01-2012, ALONG WITH CRRP. 2035/2003, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
jvt
CRL.M.C.No.4427 OF 2003
APPENDIX
Petitioner's Exhibits :-
Annexure I :- Copy of common order passed by the
J.F.C.M, Vaikom in C.M.P.No.1657/99.
Annexure II :- Copy of judgment passed by the Additional
Sessions Judge, Kottayam in Revision Petition No.24/02.
Respondent's Exhibits :- NIL.
//True Copy//
P.A. to Judge
N.K.BALAKRISHNAN, J.
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Crl.M.C.No.4427 of 2003 &
Crl.R.P.No.2035 of 2003
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Dated this the 11th day of January 2012
O R D E R
These petitions are filed by the person who claims release of the gold ingot marked as MO1 in C.C.No.37/1995 of J.F.C.M., Vaikom. The former (Crl.M.C.4427/03) is filed under Sec.482 Cr.P.C. while the latter (Crl.R.P.2035/03) is seen filed under Sec.397 r/w 401 Cr.P.C. During the pendency of the trial in C.C.No.37/1995 a petition was filed by the petitioner under Sec.451 Cr.P.C. for release of the gold ingot. That case, C.C.No.37/1995 was disposed of by the learned Magistrate as per judgment dated 3.6.1997. The accused therein was convicted and sentenced for offences punishable under Secs.457 and 380 IPC, which attained finality. While pronouncing the judgment in C.C.No.37/1995 the learned Magistrate observed that a claim petition was filed by PW4 (the petitioner herein) for return of MO1 - gold ingot and that petition will be Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 2 :- tried/enquired separately. On receipt of the notice issued in CMP No.2867/1996 (which was the petition filed by the petitioner herein under Sec.451 Cr.P.C.) a petition was filed by PW1 the de facto complainant in C.C.No.37/1995 (the respondent herein) claiming release of MO1-gold ingot stating that she is entitled to get release of the same. Both those petitions were disposed of by the learned Magistrate as per common order dated 16.4.1999. That common order is challenged in these two petitions.
2. Since the main case was disposed of, the earlier petition filed under Sec.451 Cr.P.C. must be deemed to have been closed or that petition should have been subsequently treated as the one filed under Sec.452 Cr.P.C. When final order of disposal of gold ingot was passed by the learned Magistrate as per the impugned common order, the remedy of the aggrieved party (petitioner herein) was to file appeal before the Sessions Court under Sec.454 Cr.P.C. But instead one petition was filed under Sec.482 Cr.P.C. Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 3 :- and another under Sec.397 Cr.P.C. Both these petitions are actually not maintainable. However, since both parties have agreed that these two petitions may be treated as appeal filed under Sec.454 Cr.P.C. and be disposed of on merit as if it is an appeal filed under Sec.454 Cr.P.C.
3. The learned Magistrate after appreciating the evidence led in C.C.No.37/1995 and in the two petitions filed under Sec.451/452 Cr.P.C. held that the claim made by the petitioner herein is unsustainable whereas PW1 the de- facto complainant in the main case is entitled to get release of the gold ingot and accordingly the petition filed by the first respondent herein (PW1 in C.C.No.37/1995) was allowed.
4. The learned counsel for the petitioner/appellant would submit that the learned Magistrate has not properly considered Ext.P1 receipt issued by the Sub Inspector of Police, Mararikulam which would clearly prove that gold ingot weighing 40gms was handed over by the appellant Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 4 :- (PW4) to the S.I. of Police, Mararikulam. The offence of burglary took place within the limits of Vaikom Police Station. Based on the complaint given by PW1, Crime No.238/89 was registered in that police station. After about 10 months of the occurrence the accused therein was arrested by PW5, the S.I. of Police, Mararikulam in connection with Crime No.66/1990 of Mararikulam Police Station. According to PW5, the accused disclosed the factum of sale of gold chain (snatched from the possession of PW2, the mother of PW1) at the shop of PW4 and pursuant to that disclosure statement and as led by the accused, PW5 went along with the accused to the shop of PW4. The evidence is to the effect that when PW4 was asked he deposed that the gold chain was melted by him and the gold ingot prepared out of it would be given to the police on that date ie; on 25.4.1990. PW4 handed over MO1 gold ingot to PW5 which was seized by PW5 as per Ext.P4 mahazar marked in that main case. Since the place of Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 5 :- occurrence is within the limits of Vaikom Police Station the accused and the crime records were forwarded to Vaikom Police. Even though PW4 did not fully support the prosecution, the learned Magistrate relied upon the evidence given by PW5 and other circumstances to hold that the accused therein was guilty and accordingly he was convicted and sentenced.
5. The petitioner/appellant contends that the appellant is a jewellery owner having his shop at Cherthalai and that the Sub Inspector of Police, Mararikulam went to his jewellery on 25.4.1990 and then he handed over 22 Carrot gold ingot weighing 40gms. According to the appellant, though he at first refused to yield to the demand made by the police, he was threatened by the police and so the appellant who was an old man had no other alternative but to hand over the gold ingot and for that purpose a receipt was issued. It was also contended by the appellant that on 25.4.1990 a police constable from Mararikulam Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 6 :- Police Station and directed him to go to the police station. He was threatened that if he does not hand over the gold ingot he would be taken into custody and so he was compelled to hand over 40gms of gold ingot, the appellant contended. According to the appellant, Ext.P1 is the receipt issued by the police officer to prove that fact.
6. The learned counsel for the first respondent would strongly resist the contention advanced by the appellant. It is only a story invented by the appellant to some how or other raise a claim over the gold ingot and it was to bolster up that false claim a story was created by him to the effect that he was threatened and that he was also given a receipt, the respondent contends. The bar under Sec.162 of Cr.P.C. that the statements recorded under Sec.161(3) of the Code "at any inquiry or trial in respect of any offence under investigation" except for the limited purpose mentioned in the section is not applicable in the summary inquiry held for ordering disposal of the Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 7 :- property under Sec.452 Cr.P.C. Therefore, the embargo contained in Sec.162 of the Code is not applicable when such statements are used in an inquiry under Sec.452 Cr.P.C. It is trite law that during inquiry under Sec.452 Cr.P.C. for disposal of properties the court can make use of the case diary statements of witnesses as well as confession statement of the accused. Reliance has been placed on the decision of this Court in State of Kerala v. Thiraviyam Panicker [1960 KLT 1051] and Krishna Pillai v. Public Prosecutor [1987 (2) KLT 366]. The learned counsel for the first respondent has also relied upon the decision of the Division Bench of this Court in Govindaraj v. State of Kerala [1987 (2) KLT 1017] where it was held :
"As we have already pointed out, in passing an order of disposal, it is open to the court to look at all available materials. It would be open to the court to look at the materials collected during investigation and other materials on record. Those materials must certainly take in the judgment of conviction against some of the accused who figure in the charge sheet laid by the Investigating Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 8 :- Officer. It is not a question of the court making use of the judgment of conviction against the accused who have been acquitted. It is more a question of the court finding materials on the basis of which a proper finding regarding disposal of property is to be arrived at. We see no reason why the judgment of conviction of some of the accused cannot be looked into for the purpose of arriving at a finding."
Thus, relying on the dictum laid down in the aforesaid case it is argued on behalf of the first respondent that the materials on record and the findings in the main case are also relevant in arriving at a finding as to what should be the proper way of disposal of the property. The learned counsel would submit that in the case which ended in conviction the learned Magistrate relied upon the evidence given by PW5 the police officer who arrested the accused therein, on whose disclosure statement MO1 the gold ingot was seized from the shop of the appellant - PW4 therein. When PW4 (the appellant) was examined in that case he had no case that he was threatened by the police officer or Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 9 :- by anybody else. He made a slightly inconsistent version stating that the gold ingot was not seized from his shop but at the same time he deposed that he had handed over the gold ingot to the police. The statement recorded by the police was to the effect that it was seized from his shop and that the gold ingot happened to be handed over by him to PW5 since the gold chain which was sold to him by the accused therein was melted by him and MO1 was the gold ingot made out of the gold chain so melted by him. There was also no case, when he was examined as PW4 before the trial court, that for handing over of the gold ingot a receipt was issued either by the S.I. or by any police constable. The fact that PW4 has chosen to give a distorted version before the court while he was examined as PW4 is not a reason to attribute incredibility to the records and statements prepared by the police officer. The case diary statements and other records can be gone into and considered by the court while enquiring a petition under Sec.452 Cr.P.C. Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 10 :- Those statements and the evidence given by PW5, the Investigating Officer can certainly be relied upon by the court for the proper disposal of MO1 gold ingot.
7. It is also pointed out that when PW5 in C.C.No.37/1995 the investigating officer was examined he has given a clear, cogent and convincing evidence that the accused therein was arrested in connection with Crime No.66/1990 of Mararikulam Police Station and that it was during interrogation the accused disclosed that the stolen property-gold chain- involved in Vaikom crime which was the subject matter of C.C.No.37/1995 was sold by him to PW4 at his jewellery at Cherthalai and that if he (the accused) is taken to that shop he will show the person to whom it was sold and also the said shop. That was the statement admissible under Sec.27 of the Evidence Act. There was confirmation of the truthfulness of that statement since PW4 (the appellant herein) admitted that the accused therein had sold to him the gold chain and that Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 11 :- it was melted by him, from out of which, MO1 gold ingot was made. That evidence was accepted by the learned Magistrate. There was no case when PW5, the S.I. was in the witness box that he had threatened PW4 or that the gold ingot was subsequently got made and taken it to the police station. Ext.P4 which was the mahazar prepared for the seizure of MO1 gold ingot and the relevant portion of the disclosure statement (Ext.P4(a)) given by the accused therein were marked through PW5, the S.I. There was not even a suggestion to PW5 that the contents of Ext.P4 are wrong. It is true that the appellant (PW4) could not have put any question to PW5. But it has been pointed out by the learned counsel for the respondent to unfold the fallacy of the case belatedly advanced by the appellant. If the appellant wanted to challenge the evidence of PW5 and the records prepared by him which are admissible in evidence in a petition for disposal of property under Sec.452 Cr.P.C. the appellant should have challenged the same by Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 12 :- examining PW5. That was not done. As such the evidence given by PW5 and the records prepared by him being part of the record was correctly relied upon by the learned Magistrate while considering the petition under Sec.452 Cr.P.C. It is also important to note that though appellant wanted to rely upon Ext.P1 receipt stated to have been given by S.I. of Police Mararikulam, there was no such case that when PW4 was examined in C.C.No.37/1995. Since the appellant wanted to rely upon Ext.P1 it was the bounden duty of the appellant to summon the person who was stated to have issued the receipt to prove the same. Simply by thrusting in a receipt the appellant cannot contend that it was the receipt issued by the S.I. of Police, Mararikulam or that the contents of that receipt are true. There is no legal evidence to prove Ext.P1.
8. The petitioner/appellant relies upon Ext.P1 receipt dated 25.4.1990 purported to have been issued by the S.I. of Police, Mararikulam for having received 40gms Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 13 :- gold ingot. He also relies upon Ext.P2 which he claims to be the stock register for the year 1991-1992. A self serving recital in his register cannot be made use of by him to claim that gold ingot given by him belonged to him absolutely. But when the appellant was examined as PW1 it was stated by him that when he was examined as PW4 in the main case he had identified MO1 as the gold ingot given by him to the investigating officer. In evidence he says that he produced the gold ingot weighing 40gms to the Cherthalai police and the receipt was obtained from a police constable. The police constable or the S.I. of Police who was stated to have issued the receipt was not examined. That apart, the unimpeachable evidence adduced in the main case in which the claimant was examined as PW4 is to the effect that the said gold ingot was recovered based on the disclosure statement given by the accused. The statement of the accused was that he had sold the gold ingot to the claimant- PW4. The statement given by the claimant in the main case Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 14 :- and his statement to the police was to the effect that he admitted that he had received the gold chain from the accused and since it was melted he handed over the gold ingot to the police. There was no case for the claimant to the contrary when he was examined as PW4 in the main case. Therefore, besides the inconsistency in the evidence given by the claimant as PW1, the inherent improbability in the case put forward by the claimant/appellant is loudly obtrusive that the effect of that intrinsic infirmity cannot be got erased or obliterated. As observed earlier, he had no case, when examined as PW4 in the main case, that he was threatened by the police to hand over MO1 gold ingot. Therefore, it is crystal clear that such a case was maneuvered by him to get the gold ingot released to him.
9. It was argued by the learned counsel for the appellant that if a doubt arises as to the ownership of property, the parties should be left to their remedy in civil suit. The decision in Padmanabhan Nambiar v. Kannan Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 15 :- Nair reported in [MLJ 1961 (Crl) 319] has been relied upon for that purpose. The facts of that case are entirely different. There, the case against the accused was trespass into a property and theft of timber. The timber logs alleged to have been stolen were taken into custody by the police and entrusted to the sureties. There was dispute with regard to the title to the immovable property and so one party claimed that the timber logs were of the tree situated in his property whereas the other party claimed that the property belonged to her in jenmam. Therefore, the crucial question in that case was as to the title to and possession over the immovable property where the tree stood. In such a case, only the civil court can decide who was actually having title to the property. Entitlement to the release of timber logs did depend upon the proof of title to the property which the civil court alone could decide. Here, the position is entirely different. The definite case of the complainant is that her gold chain was removed by the Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 16 :- accused after trespassing into her house in the early morning and based on the statement of the complainant the FIR was registered. It was during the investigation in connection with another case the accused was arrested and he gave the disclosure statement regarding the sale of gold chain involved in this case to the claimant/appellant herein. Therefore, that also is an added circumstance to hold that the case of the respondent herein and also of the prosecution that the gold chain was sold by the accused to PW4 in the main case and as he had melted the gold chain, the gold ingot was seized from him as per the mahazar is true and acceptable.
10. The enquiry envisaged in Sec.452 of the Code should be confined to the question as to who is entitled to possession of the property. Title to the property is not a matter very relevant to such an enquiry, though sometimes, as has been mentioned in Padmanabhan Nair's case it may have relevance. The expression "delivery to any Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 17 :- person claiming to be entitled to possession thereof" cannot be equated with delivery to the person from whom the property is seized or taken. It was held by this Court in Krishna Pillai v. Public Prosecutor [1987 (2) KLT 366] :
"........ The expression "delivery to any person claiming to be entitled to possession thereof" cannot be equated with delivery to the person from whom the property is seized or taken. Of course, if the person from whom the property has been seized is found to have been in lawful possession at the time of seizure, such possession can be equated with the expression "entitled to possession thereof.""
It was also held in the aforesaid decision :
"As early as in 1943 the aforesaid principle gained acceptance by court in Pohlu v. Emperor [AIR (30) 1943 Lahore 312] when it was held that "there is no bar in S.25, Evidence Act, or in S.162, Criminal P.C., to a confessional statement of an accused made to a police officer during investigation being used for the purpose of S.517 to determine firstly, whether the property is property regarding which an offence appears to have been committed, and secondly, for determining the person to whose custody it should be delivered." The aforesaid view was followed by different High Courts. Eg:- Mst.Bhutt v. Bhanwarlal [1965 (2) Cri.L.J. 702]; State of Kerala v. Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 18 :- Thiraviyam Panicker [1960 KLT 1051]; Thampi Chettiar v. State [1985 Cri.L.J. 1158]. It can therefore be taken as well settled that during enquiry for disposal of properties courts are well within the power to use case diary statements of witnesses as well as confessional statements of the accused."
The decision in Krishna Pillai's case was followed in Puthiyadathu Kavu Devaswom Temple Committee v. Manoharan reported in [2002 (2) KLT 167] where also it was held that the case diary statements recorded by the investigating officer after questioning the person from whose possession such articles were recovered, if found reliable, can certainly be acted upon. The decision in Joseph v. State of Kerala reported in [1997 (1) KLJ 764] is not applicable to the facts of this case since here the admission made by PW4 (the claimant) to the investigating officer and the evidence given by him before the court below in the main case would clearly show that MO1 gold ingot was actually obtained by melting the gold chain which was removed by the accused from the neck of the de facto Crl.M.C.No.4427 of 2003 & Crl.R.P.No.2035 of 2003 -: 19 :- complainant.
11. In the light of what is stated above, I have no hesitation to hold that the learned Magistrate has properly appreciated the evidence adduced in the enquiry conducted by that court as to whom the property (MO1 gold ingot) is to be released and has come to a correct conclusion that the first respondent is entitled to get release of the same. As such, the impugned order is only to be confirmed.
In the result, both these petitions are dismissed.
N.K.BALAKRISHNAN, JUDGE.
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