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2013 DIGILAW 654 (KER)

Safarulla v. Anil Kumar

2013-07-29

V.K.MOHANAN

body2013
Judgment : 1. The case of the petitioner is that he is owner of building bearing T.C.No.39/2193(2) of Thiruvananthapuram Corporation and the petitioner in C.M.P.No.3390 of 2013 in Crime No.183 of 2013 of Fort police station was the tenant of the above building and there is a dispute which is the subject matter in R.C.A.No.68 of 1995 of the IInd Additional District Court, Thiruvananthapuram. According to the petitioner, he is entitled to get the key of the building, which is the subject matter in R.C.A.No.68 of 1995, since Crime No.183 of 2013 was registered in Fort police station connected with the same building. But the court below passed an order dated 26.06.2013 in C.M.P.No.3390 of 2013 handing over the key to the petitioner therein, who is de facto complainant in the above crime. According to the petitioner, he is entitled to get the key of the building in question, hence he preferred the above petition under Section 482 of Cr.P.C with a prayer to set aside the order dated 26.06.2013 of the court below which referred to above. 2. Heard Sri.T.M.Abdul Latheef, learned counsel appearing for the petitioner. I have perused the materials produced along with this petition. 3. In the given facts and circumstances of the case, it appears that the claimant in C.M.P.No.3390 of 2013 is the de facto complainant in Crime No.183 of 2013 of Fort police station where the offences alleged are under Section 461, 451 and 427 of IPC. Of course the subject matter of the crime connected with the building in question which is also the subject matter of series of civil litigation, and one of the civil case is referred to in the order. According to the petitioner, he is falsely implicated in the above crime and the key was taken by the police. It is beyond dispute that the above crime was registered as early as on 1.2.2013, the petitioner was fully aware of the fact that the key in question is seized by the police connected with the above crime. But so far he has not preferred any crime before the court below for the custody of the said key. But it is pertinent to note that the de facto complainant in the above crime filed C.M.P.No.3390 of 2013 and considering the said claim on merit the learned Magistrate passed the impugned order. But so far he has not preferred any crime before the court below for the custody of the said key. But it is pertinent to note that the de facto complainant in the above crime filed C.M.P.No.3390 of 2013 and considering the said claim on merit the learned Magistrate passed the impugned order. In the said order, the learned Magistrate has found that "on perusing the order in R.C.A.No.68 of 1995, that the petitioner-the de facto complainant herein is in possession of the shop room." On such finding on merit it is held that the petitioner therein deserve and his claim was bonafide, and the learned Magistrate decide to give the key in question as an interim measure to the de facto complainant the claimant therein. 4. The learned counsel for the petitioner vehemently submitted that before passing an order under Section 451 of Cr.P.C., the learned Magistrate is bound to hear all the parties interested and it is for that court to find out who are the persons interested on the basis of the material before the court below. I am unable to sustain the above contention. As I already referred above, the crime was registered on 1.2.2013 and though the key was seized as part of the investigation in the above crime then and there, the petitioner did not prefer any claim. The failure on the part of the petitioner, in filing any timely petition for the interim custody of the key itself shows that he is not interested in getting the key or use the shop room in question. 5. It is also relevant to note that an order under Section 451 of Cr.P.C is being passed, as an interim measure, with respect to the property involved in a case which being enquired into or tried by the court below. However, in view of Section 452 of Cr.P.C., the trial court is bound to pass an order for the disposal of the property on conclusion of the trial which will be the final order with respect to the property. However, in view of Section 452 of Cr.P.C., the trial court is bound to pass an order for the disposal of the property on conclusion of the trial which will be the final order with respect to the property. So the petitioner will get an opportunity if he make an application for the custody of the key at any stage of the trial including the stage at Section 452 of Cr.P.C. As the petitioner failed to make any claim before the order dated 26.06.2013 which is impugned in this M.C. I do not propose to disturb the order passed by the learned Magistrate at this stage. It is left open to the petitioner to approach the court below by filing a proper application for the custody of the key in question and it is for the learned Magistrate to consider such claim on merit. Notwithstanding any observation or finding contained in this order. Accordingly, the above petition is dismissed but subject to above observation.