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2012 DIGILAW 904 (KER)

Mukundan v. State of Kerala

2012-10-01

S.S.SATHEESACHANDRAN

body2012
JUDGMENT Annexure A2 order passed by the Judicial First Class Magistrate Court. Wadakkanchery on an application moved under Section 451 of the Code of Criminal Procedure, for short ‘the Code’ is challenged in the above petition. 2. Petitioner claims to be the owner of a room locked by the police in connection with a crime case which is pending investigation. Key of that room was produced before court. Petitioner applied for handing over the key to have interim custody of the room. That application was dismissed by the magistrate holding that the criminal court has no jurisdiction or empowerment to deal with immovable property. Learned counsel for the petitioner submits that the view taken by the magistrate holding that he is incompetent to pass an order under Section 451 of the code over an immovable property is patently erroneous and unsustainable under law. 3. In one of the shop rooms of the petitioner, a tenant was in occupation. He carried out some financial activities in that premises in violation of the statutory prescriptions. The Sub Inspector of police, Erumapetty Police Station, after conducting a raid over that premises and being satisfied That the premises were being used for operating financial dealings in violation of statutory prescription locked the room. A crime was registered as Crime No.228 of 2012 of Erumapetty Police Station, for offences under Sections 3 and 4 of the Prize Chits Money Circulation Scheme (Banning) Act, 1978 and Section 17 of the Kerala Money Lenders’ Act, against the occupant/tenant and the key of the room was produced before the court. Petitioner/ landlord. there upon moved an application for return of the key. Styling his petition as one field under Section 451 of the Code. That application was dismissed by the magistrate holding that he has no jurisdiction to pass any order over an immovable property. 4. Indisputably. The investigation of the crime is still in progress. So much so, at this stage, after a report is filed by the police over the seizure of property, no enquiry or trial is pending before the court enabling the magistrate to pass order under Section 451 of the Code. The only provision that is applicable in the facts and circumstances presented, at this stage, is under Section 457 of the Code {See Thimothy v. state of Kerala (1987(1) KLT 82)}. The only provision that is applicable in the facts and circumstances presented, at this stage, is under Section 457 of the Code {See Thimothy v. state of Kerala (1987(1) KLT 82)}. Though the word ‘property’ stated in Section 457 of the Code is not explained as the case of that word in Section 451 of the Code where under it includes both movable and immovable, that is no ground to hold that the magistrate is incompetent to pass orders over an immovable property u/s 457 of the Code where its seizure has made and reported to him by the police. In fact, such a question does not require a detailed scrutiny since this court in Alikunju v. Alikunju {AIR 1960 Kerala 343} has held almost in a similar fact situation over the closing of a house and its keys produced by the police, the magistrate has empowerment to pass conditional orders for release of the keys to any person being satisfied of his entitlement for collecting such keys. Where the investigation of the case is going on, whether any person is entitled to get release of the keys produced before the court, if so canvassed of before the magistrate, has necessarily to be examined, and decided where the seizure by locking of the room is reported. And the key of the room is produced. This court in Alikunju’s case. repelling the challenge against the order of the magistrate directing return of the key of a house, to a person who claimed to be the occupant of such house, has held thus: “ Even if the order was not one passed under any provision of the code it could be treated as an administrative order” That view expressed by this court has necessarily to be followed to avoid miscarriage of justice. If the scope of Section 457 of the Code is restricted as not applicable to seizure over immovable property, even after a report of such seizure is made to the magistrate, so long as the investigation continues the affected party will have no remedy at all. Scope of Section 457 of the Code, when the investigation of the crime is continuing, in fact, contemplates of a temporary measure over the seized property. Which has been reported by the police to the magistrate. Scope of Section 457 of the Code, when the investigation of the crime is continuing, in fact, contemplates of a temporary measure over the seized property. Which has been reported by the police to the magistrate. That being so, irrespective of the question whether the seizure is over movable or immovable property, having regard to the facts and circumstances of the case and also preservation of the property seized, the entitlement of the party seeking its release has to be considered by the court and appropriate orders advancing the ends of justice have to be passed. In case release of property is ordered, it is open to the magistrate to impose such conditions as may be required for fair investigation, and also trial, which may follow. Annexure A2 order passed by the magistrate in the case in the aforesaid circumstances cannot be sustained. 5. Learned Additional Director General of prosecution submits that the investigation has disclosed complicity of the petitioner also in the offences imputed over the financial operations carried out in the room which was locked by the police and key produced before court. Since the magistrate has not considered the claim of the petitioner for release of the keys but dismissed it holding that it is not maintainable, further enquiry on the merit of the claim with reference to the facts and circumstances involved, by the magistrate, is necessary, is the further submission of the learned Additional Director General of Prosecution. I find that submission canvassing for a proper enquiry over the claim raised by the petitioner is well founded. 6. In the circumstances, setting aside Annexure A2 order the magistrate is directed to examine the claim of the petitioner afresh after hearing all parties, the petitioner, the investigating officer represented by Assistant public prosecutor and the accused who is alleged to be tenant of the room locked by the police. The magistrate is directed to dispose the petition expeditiously within a time limit of six weeks from the date of receipt/ production of a copy this order. Petition disposed of.