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2013 DIGILAW 343 (KER)

Babichan Joseph S/o. Joseph v. State Of Kerala

2013-04-04

C.T.RAVIKUMAR

body2013
ORDER : The petitioner who is a jewellery owner filed this petition on being aggrieved by the rejection of an application viz., C.M.P.No.7690/2012 filed by him under Section 451, Cr.P.C. for getting interim custody of the property produced before the Court of the Judicial First Class Magistrate, Ambalapuzha in Crime No. 359/2012 of Punnapra Police Station, as per Annexure-C order. The said crime was registered alleging commission of offences under Sections 454 and 380 r/w Section 34 of the Indian Penal Code. Admittedly the petitioner is not arraigned as an accused in that crime. The allegation against the accused therein, as per Annexure-B FIR registered in the said crime is that after stealing bangle weighing 5 grams and a golden ring weighing 3 grams and a mobile phone they had escaped through the front door of residential house of the defacto complainant which they somehow managed to open to enter into it. Thus it is evident that even going by the allegations against the accused in that crime that they had stolen only 8 grams of gold. The case of the petitioner is that the Investigating Officer had forcefully taken gold ornaments from his jewellery namely, 'Kallukulam Jewellery' and then converted it into gold ingot. It is in the circumstances that the petitioner herein filed C.M.P.No.7690/2012 under section 451, Cr.P.C. seeking interim custody of the gold ingot. 2. The court below called for a report from the Investigating Officer. The prayer of the petitioner was resisted by the prosecution contending that the property sought to be released is gold ingot and its release would cause injury to prosecution as it would be tampered with. It was further contended before the court below that the identification of those articles are highly necessary at the time of evidence. As per Annexure-C the learned Magistrate found that the contention of the petitioner that no harm would be caused in case of release of gold ingot to him could not be accepted as in case of its tempering it would cause prejudice to the case of the prosecution. As already seen, the very case of the prosecution is that the accused in Crime No.359/2012 had stolen a golden bangle weighing 5 grams and a golden ring weighing 3 grams. Admittedly, the said articles as such are not now, available before the court below and what is now available is only a gold ingot. As already seen, the very case of the prosecution is that the accused in Crime No.359/2012 had stolen a golden bangle weighing 5 grams and a golden ring weighing 3 grams. Admittedly, the said articles as such are not now, available before the court below and what is now available is only a gold ingot. In such circumstances what is the tampering which is apprehended of. When the very case of the prosecution is that only 8 grams was stolen by the accused in that crime I am of the view that the gold ingot weighing 104 grams (according to the petitioner) can be entrusted to his interim custody. Then the question is even while putting condition requiring him to produce the same before the court as and when required whether the petitioner herein can be compelled to produce the ingot viz., having a weight of 104 grams as such when the very case of the prosecution is that the accused in that crime had stolen only one sovereign. In such circumstances, even at a later stage, at best, the petitioner could be directed to produce before the court only 8 grams and not the gold ingot of 104 grams, if the weight of the gold ingot is 104 grams as alleged by the petitioner, as the prosecution did not have the case that the entire gold stolen was converted in to an ingot of 104 grams. In such circumstances I am of the view that Annexure-C order passed in C.M.P.No.7690/2012 cannot be sustained. In the said circumstances Annexure-C order is quashed and the C.M.P.No.7690/2012 will stand allowed on the following conditions:- 1. The petitioner shall execute a bond for Rs.25,000/- to the satisfaction of the Court of the Judicial First Class Magistrate, Ambalappuzha. 2. Petitioner shall also give undertaking in writing to the effect that he will produce 8 grams of gold from out of the gold ingot released to his custody as and when directed by the Court of the Judicial First Class Magistrate, Ambalappuzha. 3. It will also be open to the court below to have 8 grams of gold get separated from the gold ingot concerned by resorting to suitable method and keep it under custody and then release the rest to the petitioner. In such case the release of 8 grams would be subject to the outcome of the criminal proceedings in question. It will also be open to the court below to have 8 grams of gold get separated from the gold ingot concerned by resorting to suitable method and keep it under custody and then release the rest to the petitioner. In such case the release of 8 grams would be subject to the outcome of the criminal proceedings in question. If the court below prefers to do so it will be open to the court to pass appropriate orders for working out condition No.3.