Suresh Serve V vs State Of Kerala Represented By on 19 May, 2020

[Cites 21, Cited by 8]

Kerala High Court

Suresh Serve V vs State Of Kerala Represented By on 19 May, 2020

Equivalent citations: AIRONLINE 2020 KER 1034

Specific question begging for an answer in this order of reference is whether or not gold ornaments and money could be released in interim custody under Section 451 of the Code of Criminal Procedure, 1973 (in short, "Cr.P.C.") to a person claiming to be the owner of jewellery/money without incorporating a condition that the said articles should be produced before the court, as and when directed, exactly in the same condition as they were at the time of entrustment?

2. Aggrieved by conditions 2 and 4 in Annexure-A3 order passed by the Chief Judicial Magistrate, Pathanamthitta on Crl.M.P.No.3898 of 2019 in Crime No.1880 of 2019 of Pathanamthitta Police Station, the petitioner/claimant has approached this Court seeking modification of the conditions. A learned single Judge, vide reference order dated 09.10.2019, Crl.MC No.6554 of 2019 3 raised the above mentioned question and as ordered by the Hon'ble the Chief Justice, the matter has been placed before us.

3. Short facts relevant for the decision are as follows:

Pathanamthitta police registered Crime No.1880 of 2019 for an offence punishable under Section 392 of the Indian Penal Code, 1860 (in short, "IPC"). Annexure-A1 takes in both the first information statement (FIS) and the first information report (FIR). Sales Manager, Krishna Jewellery, Pathanamthitta has lodged FIS on the allegation that the accused 1 to 4 on 28.07.2019 at 16.30 hours trespassed into the jewellery store, tied up the defacto complainant, physically assaulted him and thereafter they robbed 3.5 kgs. of gold ornaments kept in a locker and also `13 lakhs in cash. Total loss estimated is `1,25,70,000/-. With these allegations, the case was registered.

4. Annexure-A2 is copy of the petition filed by the defacto complainant under Section 451 Cr.P.C seeking an order for release of cash and gold ornaments produced before the court by the investigating officer.

5. After considering all the contentions of the petitioner, Annexure-

A3 order was passed by the Court. Placing reliance on the Supreme Court's decision in Sunderbhai Ambalal Desai v. State of Gujarat ((2002) 10 SCC

283) and another decision by this Court in Thomas Koshy v. State of Kerala (2010 KHC 617), the trial court issued the following directions:

"1. The petitioner shall execute bond for Rs.1,50,00,000/- (One Crore fifty lakhs only) with 2 solvent Crl.MC No.6554 of 2019 4 sureties, each for the like sum for production of the articles before the court.

2. The petitioner shall furnish security of bank guarantee for Rs.1,50,00,000/- before this Court.

3. The petitioner shall not use the above articles for committing any crimes.

4. The petitioner shall produce the above articles before the court in the same condition as and when required.

5. The petitioner shall produce attested photographs of the above articles counter signed by the Sub Inspector of Police, Pathanamthitta.

6. Detailed Mahazar of all the above articles shall be prepared before giving its interim custody to the petitioner."

6. Conditions 2 and 4 above are under challenge.

7. Heard the learned counsel for petitioner and learned Public Prosecutor.

8. We shall start by referring to the facts in Sunderbhai Ambalal Desai's case. The petitioners, who were certain police inspectors, along with other police personnel, were allegedly involved in offences punishable under Sections 429, 420, 465, 468, 477A and 114 of the Indian Penal Code (in short, "IPC"). Prosecution case was that when they worked at various police stations they committed offences during certain period by replacement of mudammal articles including gold ornaments by other spurious articles, misappropriation of amounts kept in the police station, unauthorised auction Crl.MC No.6554 of 2019 5 of property seized and kept in police custody pending trial and tampering with records in the police station.

9. In the above case, questions relating to interpretation of Section 451 Cr.P.C. have been raised before the apex Court. In paragraphs 10 to 14 following observations are made:

"10. To avoid such a situation, in our view, powers under Section 451, Cr. P.C. should be exercised promptly and at the earliest.

Valuable Articles and Currency Notes

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 Section 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.

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 Crl.MC No.6554 of 2019 6 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 Section 451, Cr. P.C. to impose any other appropriate condition.

14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimants, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed."

10. Learned single Judge mentioned in the reference order that in Sunderbhai Ambalal Desai's case the Court did not consider the rights of a claimant who seeks release of gold ornaments in interim custody for utilising the same for his routine business. In other words, in the above decision there was no occasion for the court to pronounce on a situation where the jewellery could be given to the claimant unconditionally allowing Crl.MC No.6554 of 2019 7 him to sell them out to prospective customers pending trial. In our view, there is no limitation either explicitly or implicitly imposed in Sunderbhai Ambalal Desai's case by the apex Court on the powers of a criminal court, exercisable under Section 451 Cr.P.C, to meet the ends of justice having regard to the peculiar facts and circumstances established in each case.

11. Yet another decision relied on by the court below is Thomas Koshy's case (supra). In that case, a learned single Judge, relying on Sunderbhai Ambalal Desai's case, interfered with an order passed by the Magistrate declining to issue an order under Section 451 Cr.P.C. for releasing gold ornaments involved in a theft case. We find no specific legal principle laid down in this decision.

12. It may be apposite to note the scheme for disposal of property set out in Chapter XXXIV Cr.P.C.. Section 451 Cr.P.C. is quoted hereunder for clarity:

"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.

Explanation.- For the purposes of this section, "property" includes -

Crl.MC No.6554 of 2019 8

(a) property of any kind or document which is produced before the Court or which is in its custody.

(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."

13. This Section enables the courts to pass orders for custody or disposal of property during or trial. Section 452 Cr.P.C. deals with orders for disposal of property at the conclusion of trial. By virtue of the Explanation added to Section 451, the word "property" has been given a wider meaning than it ordinarily has. The only precaution to be taken by a trial court is to ensure that while disposing an application for return of property, all the concerned persons are duly informed.

14. Another provision relevant in this context is Section 457 Cr.P.C. which speaks about the procedure for disposal of property seized by the police, but which is not produced before a criminal court during inquiry or trial. Orders passed both under Sections 451 and 457 are during inquiry or pendency of trial.

15. Learned counsel for the petitioner relied on a decision by a learned single Judge of the High Court of Delhi in Manjit Singh v. State (2014 0 Supreme (Del) 2080). On a perusal of the facts involved in that case, it can be seen that the subject matter of dispute was a Ford Endeavour car, which was allegedly stolen by somebody. Learned single Judge issued various guidelines regarding disposal of property under Crl.MC No.6554 of 2019 9 Section 451 Cr.P.C. Since parameters about release of vehicles have been specifically dealt with in Sunderbhai Ambalal Desai's case, we find the observations in Manjit Singh are only reiteration of the same. Moreover, the facts in that case are dissimilar to that in this case.

16. Another decision relevant to be mentioned in this regard is General Insurance Council and others v. State of Andhra Pradesh and others ((2010) 6 SCC 768). Following in footsteps Sunderbhai Ambalal Desai, this decision was rendered. In General Insurance Council's case, they contended that despite the directions passed in Sunderbhai Ambalal Desai, there was no full and complete compliance of the same. They, therefore, approached the Supreme Court for issuing further directions, so that national waste, with regard to seized vehicles involved in commission of various offences, should not be allowed to occur and they should not be allowed to become junk and unworthy of plying on road. In that context, the Supreme Court reiterated that the mandate of Section 451 read with Section 457 Cr.P.C. should be followed with regard to seized vehicles. Since the questions raised in this case and the case on hand are different, we cannot apply the principles stated therein to release the jewellery involved.

17. Our attention has been drawn to a decision, by a learned single Judge in V.Parakashan v. K.P.Pankajakshan (1985 Cri.L.J. 951) dealing with object, nature and effect of passing an order under Section 451 Cr.P.C. for interim custody. It reads thus:

"S.451 enables the Magistrate to provide for interim Crl.MC No.6554 of 2019 10 custody of property pending conclusion of inquiry or trial. It is only a temporary arrangement and what is contemplated is only an interim provision to provide custody with a proper person as the Court thinks fit with liability to produce the property back as and when directed by the Court. The maximum duration of the arrangement is only till conclusion of the inquiry or trial. It follows that the arrangement is only temporary and the main object is to protect or preserve the property pending trial. Even if the person entrusted with interim custody is the owner his possession or custody during the period of entrustment is only as representative of the Court and not in his independent right."

It is to be noticed that in this decision, the learned single Judge has not considered the decision in Basavva Kom Dyamogouda Patil v. State of Mysore (AIR 1977 SC 1749).

18. On a plain reading of Section 451 Cr.P.C., it can be seen that the power to order for custody and disposal of property pending trial has to be exercised by the court by applying judicial discretion and the arrangement once made thereunder is not even final till the conclusion of inquiry or trial. The court is having a right to terminate the entrustment, get back the property from the person to whom it was given and entrust it to somebody else whom the court deems fit. In cases of rival claims for interim custody, preference of one person over the other does not settle any right to ownership or possession.

19. Recently, a learned single Judge of this Court in Nagarajan v. Crl.MC No.6554 of 2019 11 State of Kerala (2019 (5) KHC 666) considered the scope of Section 451 Cr.P.C. in the context of jewellery looted from a shop. Learned single Judge has made a reference to a passage in Basavva Kom Dyamogouda Patil (supra) wherein it has been held thus:

"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 High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. 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 Court regarding its disposal."

(underline supplied) Crl.MC No.6554 of 2019 12 Considering the precedents on the point, the learned single Judge took a view that the expression "if it is otherwise expedient so to do" occurring in Section 451 Cr.P.C confers a discretion upon the court to order sale of property other than a property which is subject to speedy and natural decay. On a careful reading of Section 451 Cr.P.C., we agree with the view expressed by the learned single Judge.

20. When a criminal court exercises its jurisdiction under Section 451 Cr.P.C., the following aspects become germane for consideration:

(I) Any property must have been produced before the court during inquiry or trial (II) The court must have been called upon to make such order as it thinks fit for the proper custody of such property pending conclusion of the inquiry or trial.

(III) Nature of property should be such that it is subject to speedy and natural decay or the court considers it is otherwise expedient to order proper custody, pending conclusion of the inquiry or trial (IV) The court should consider about the necessity of recording such evidence as it thinks fit depending on the facts in each case.

(V) Property can be disposed of either by sale or otherwise.

21. Learned Prosecutor relied on State of Maharashtra v. Dr.Praful B.Desai ((2003) 4 SCC 601). It is observed by the Supreme Court that Cr.P.C. is an ongoing statute. Taking note of the observations by a leading jurist Francis Bennion in his Commentaries on "Statutory Crl.MC No.6554 of 2019 13 Interpretation" that it is presumed the Parliament intends the courts to apply, to an ongoing Act, a construction that continuously updates its wordings to allow for changes since the Act was initially framed, the Supreme Court, in approval of said principle, held that in a number of decisions the above said principle had been applied.

22. We are cognizant of the fact that it may be humanly impossible to visualise all probable situations under which the power vested in a criminal court under Section 451 Cr.P.C. could be sought to be invoked. For the same reason, we think that there cannot be any enumeration of straight- jacket formulae suiting all the situations. We, therefore, respectfully following the guidelines in Sunderbhai Ambalal Desai's case frame additional points in respect of disposal of money and jewellery by invoking Section 451 Cr.P.C. We explicitly clarify that the additional points shown below are intended to supplement the guidelines in Sunderbhai Ambalal Desai's case and not to supplant them.

(i) Normally, currency notes can be returned to a claimant, if, after taking such evidence as the court deems fit in the facts and circumstances in each case, he could establish a prima facie right to get the money released. The court shall, in that event, take adequate measures to prevent the evidence being lost, altered or destroyed.

(ii) If, in a given case, currency note/notes happen to be a material piece of evidence, for eg., a blood stained currency note involved in a murder case, its release under Section 451 Cr.P.C. may result in destruction Crl.MC No.6554 of 2019 14 of evidence. In such cases, courts should be cautious to see whether return of the currency note/notes would prejudicially affect trial of the case and it may decline the request, if it is so.

(iii) In the case of jewellery, apart from the preparation of a proper panchanama of the articles, taking photographs, etc., mandated in Sunderbhai Ambalal Desai's case, following aspects also may be considered depending on the facts in each case:

(a) If, in a case, the allegation is that one or two gold ornaments have been stolen or snatched away from the defacto complainant, a criminal court invoking Section 451 Cr.P.C. after taking necessary evidence and following the directions in Sunderbhai Ambalal Desai's case, may release the article under Section 451 Cr.P.C. with the safeguards mentioned in the above decision and also with a direction to produce the same in the same condition as and when directed, especially when there is a rival claimant for the ornaments. If there is no rival claimant and no dispute is raised by the accused regarding the nature, shape, weight, etc. of the ornaments in question, in appropriate cases, the court may even return the same without a condition to produce them in the same condition on a later date.

(b) In a case involving theft of huge quantity of gold ornaments from a jewellery store or from a jewellery manufacturing unit, the court should take extra precautions to see whether the claimant has established, by cogent evidence, a strong prima facie case to show his Crl.MC No.6554 of 2019 15 entitlement for staking the claim. In such cases, there ought to be records to support his claim. If there are sufficient documentary evidence showing his unquestionable entitlement to the articles, especially in a case where there is no rival claimant for the jewellery, we find no reason for imposing a condition that the entire jewellery shall be produced in the same condition, as and when directed. If it is established by evidence that the ornaments claimed by him are stock in trade in the jewellery store, no earthly purpose will be served by returning them to the claimant by imposing such restrictions. Hence, such a condition need not be imposed in all cases, disregarding the factual situation in each case.

We answer the reference accordingly.

23. Coming to the facts in this case, we find the challenge is against conditions 2 and 4 imposed by the trial Judge. Condition 2 is relating to furnishing security in the form of bank guarantee for the value assessed by the court below. We find no reason to interfere with that condition as the jewellery items involved are of a considerable worth. Insofar as condition 4 is concerned, the court below shall allow the claimant to adduce evidence to establish a strong prima facie entitlement to the property. It may also ascertain whether there is any rival claimant for the gold ornaments involved in the case. After considering the entire evidence on record, the trial court shall take a decision as to whether the petitioner should be directed to produce the articles before the court in the same condition as and when required by the court. For arriving at a proper conclusion, the court below Crl.MC No.6554 of 2019 16 shall consider whether the ornaments were the stock in trade in the jewellery store belonging to the petitioner. The matter shall be disposed by the court below as expeditiously as possible, at any rate within a period of one month from the date of receipt of a copy of this order.

A.HARIPRASAD, JUDGE.

N.ANIL KUMAR, JUDGE.

cks Crl.MC No.6554 of 2019 17 APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A1              TRUE COPY OF THE FIR AND FIS DATED
                         28.7.2019 IN CRIME NO. 1880 OF 2019 OF
                         PATHANAMTHITTA POLICE STATION.

ANNEXURE A2              TRUE COPY OF THE PETITION AND AFFIDAVIT
                         FILED UNDER SECTION 451 OF THE CODE OF
                         CRIMINAL PROCEDURE.

ANNEXURE A3              TRUE COPY OF THE ORDER DATED 2.8.2019 IN
                         CRL.M P NO. 3898 OF 2019 ON THE FILE OF
                         THE CJM PATHANAMTHITTA.

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