Sampath vs State of Kerala

A. Hariprasad, J.—Petitions filed under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.").

Petitioners filed an application before the learned Judicial First Class Magistrate, Kattakkada under Section 451 Cr.P.C. seeking release of certain quantity of gold ingots in interim custody. The court below declined their request. In a similar petition filed by the de facto complainant (4th respondent in this proceedings) the court allowed the prayer. Challenging both the orders (Annexure-III in Crl.M.C.No.3347 of 2012 and Annexure-V in Crl.M.C.No.3797 of 2012), the petitioners have come before this Court.

Heard the learned counsel for the petitioners and the learned counsel for the 4th respondent/de facto complainant. Learned Public Prosecutor is also heard.

Kattakkada Police registered Crime No. 988 of 2012 for offences punishable under Sections 120B, 409 and 420 read with Section 34 of the Indian Penal Code (in short, "IPC"). Prosecution case is that the accused 1 to 3 were the staff in a jewellery owned by the de facto complainant. They conspired together and committed criminal breach of trust and cheating. The accused stealthily removed gold ornaments of various designs kept in the jewellery and replaced them with imitation gold to maintain the stock for a period from 26.09.2009 to 03.09.2012. The gold ornaments thus pilfered were entrusted with the accused 4 and 5, who in turn melted the same and converted to pure gold. The pure gold so made was surreptitiously sold to the jewelleries belonging to the petitioners and also to the jewellery of the de facto complainant. The sale proceeds were handed over by accused 4 and 5 to accused 1 to 3. This is the sum and substance of the allegations in the prosecution case.

As per the order dated 01.10.2012, the learned Magistrate directed that the recovered gold shall be given to the de facto complainant under Section 415 Cr.P.C. for interim custody. The trial Judge has directed the 4th respondent to execute a bond for `64,50,000/- with two solvent sureties for the like amount. It was also directed that the de facto complainant should produce the gold articles as and when required by the court without any change or reduction in its value or quantity. The trial court further restricted the de facto complainant from disposing of the articles without previous sanction of the court. Similarly, he was directed to produce the photographs and CD of the articles for keeping in the records. It is, therefore, evident that enough safeguards have been taken by the court below at the time of passing the order under Section 451 Cr.P.C.

Learned counsel for the petitioners submitted that the court below did not properly consider the plea advanced by the petitioners. According to him, the petitioners are not accused in the case. They are persons running jewellery in the neighbourhood, to whom the accused had sold the gold for value. On the threat of implication in a criminal case, the Police forced the petitioners to part with their valuable property, namely, gold ingots, to be produced in the case. Actually, the gold ingots belonged to the petitioners.

Controverting this contention of the petitioners, learned counsel for the 4th respondent/de facto complainant submitted that the ultimate victim of the breach of trust and cheating is the de facto complainant. If petitioners had any grievance that the Police coerced them to part with the property for no reason or no fault, they would have taken appropriate legal action in this matter. None of the petitioners had challenged the direction of the Police Officers so far. Further, the report submitted by the Investigating Officer also strengthened the reasoning of the court below, whereby the prosecution expressed their consent to hand over the gold ingots to the de facto complainant. Learned counsel for the petitioners submitted that the court below did not apply the law correctly to the facts in hand. Reliance is placed on a decision rendered by a learned Single Judge of this Court in Shameer. P.M Vs. State of Kerala, to contend that the court will get jurisdiction under Section 451 Cr.P.C. only if the property is produced before it or otherwise the property comes to the custody of the court. On a reading of Section 451 Cr.P.C., it can be seen that the essential ingredients for invoking the power thereunder is that the property should be produced before any criminal court during the enquiry or trial. Section 452 Cr.P.C. deals with disposal of property at the conclusion of trial. Nobody has a case that the trial in this case has even started. Where the seizure of a property by any Police Officer is reported to a Magistrate and such property is not produced before a criminal court during an enquiry or trial, then the court can dispose the property as stated under Section 457 Cr.P.C. On going through the impugned orders, I am of the view that the court below has applied the principle of law stated by the Supreme Court in Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, . The issue of getting interim custody of an article involved in a case is only a question at the threshold. No court can adjudicate the title in respect of the property at this stage. I find no legal basis for the claim raised by the petitioners, especially in view of the fact that the order passed by the court below is legally justifiable.

In the result, both the Crl.M.Cs. are dismissed as they are devoid of any merit.

All pending interlocutory applications will stand dismissed.