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2012 Supreme(Ker) 1110
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.K.BALAKRISHNAN, J.
Joseph S/o. Joseph – Appellant
Versus
Neelakantan, S/o. Kasthuri rangan – Respondent
CRMC.No. 4427 of 2003
Decided on : 11-01-2012
Advocate Appeared:
For the Appellant : SRI. S.RADHAKRISHNAN
For the Respondent: SRI.A.M.THOMAS
Point of Law: It is trite law that during inquiry under Sec.452 Cr.P.C. for disposal of properties the court can make use of the case diary statements of witnesses as well as confession statement of the accused.
Headnote:
Criminal Procedure Code, 1973 - Sec.482, Sec.397 r/w 401– Indian Penal Code,1860 - Ss.457 and 380 - Release of the gold ingot - Proper way of disposal of the property - Bar under Sec.162 of Cr.P.C. that the statements recorded under Sec.161(3) of the Code “at any inquiry or trial in respect of any offence under investigation” except for the limited purpose mentioned in the section is not applicable in the summary inquiry held for ordering disposal of the property under Sec.452 Cr.P.C. - Embargo contained in Sec.162 of the Code is not applicable when such statements are used in an inquiry under Sec.452 Cr.P.C.
Finding of the Court:
It is trite law that during inquiry under Sec.452 Cr.P.C. for disposal of properties the court can make use of the case diary statements of witnesses as well as confession statement of the accused - police officer who arrested the accused therein, on whose disclosure statement MO1 the gold ingot was seized from the shop of the appellant – PW4 therein - The enquiry envisaged in Sec.452 of the Code should be confined to the question as to who is entitled to possession of the property. Title to the property is not a matter very relevant to such an enquiry, though sometimes, as has been mentioned in Padmanabhan Nair's case it may have relevance. The expression “delivery to any person claiming to be entitled to possession thereof” cannot be equated with delivery to the person from whom the property is seized or taken.
Result: Petition dismissed
ORDER :
These petitions are filed by the person who claims release of the gold ingot marked as MO1 in C.C.No.37/1995 of J.F.C.M., Vaikom. The former (Crl.M.C.4427/03) is filed under Sec.482 Cr.P.C. while the latter (Crl.R.P.2035/03) is seen filed under Sec.397 r/w 401 Cr.P.C. During the pendency of the trial in C.C.No.37/1995 a petition was filed by the petitioner under Sec.451 Cr.P.C. for release of the gold ingot. That case, C.C.No.37/1995 was disposed of by the learned Magistrate as per judgment dated 3.6.1997. The accused therein was convicted and sentenced for offences punishable under Secs.457 and 380 IPC, which attained finality. While pronouncing the judgment in C.C.No.37/1995 the learned Magistrate observed that a claim petition was filed by PW4 (the petitioner herein) for return of MO1 – gold ingot and that petition will be tried/enquired separately. On receipt of the notice issued in CMP No.2867/1996 (which was the petition filed by the petitioner herein under Sec.451 Cr.P.C.) a petition was filed by PW1 the de facto complainant in C.C.No.37/1995 (the respondent herein) claiming release of MO1-gold ingot stating that she is entitled to get release of the same. Both those petitions were disposed of by the learned Magistrate as per common order dated 16.4.1999. That common order is challenged in these two petitions.
2. Since the main case was disposed of, the earlier petition filed under Sec.451 Cr.P.C. must be deemed to have been closed or that petition should have been subsequently treated as the one filed under Sec.452 Cr.P.C. When final order of disposal of gold ingot was passed by the learned Magistrate as per the impugned common order, the remedy of the aggrieved party (petitioner herein) was to file appeal before the Sessions Court under Sec.454 Cr.P.C. But instead one petition was filed under Sec.482 Cr.P.C. and another under Sec.397 Cr.P.C. Both these petitions are actually not maintainable. However, since both parties have agreed that these two petitions may be treated as appeal filed under Sec.454 Cr.P.C. and be disposed of on merit as if it is an appeal filed under Sec.454 Cr.P.C.
3. The learned Magistrate after appreciating the evidence led in C.C.No.37/1995 and in the two petitions filed under Sec.451/452 Cr.P.C. held that the claim made by the petitioner herein is unsustainable whereas PW1 the defacto complainant in the main case is entitled to get release of the gold ingot and accordingly the petition filed by the first respondent herein (PW1 in C.C.No.37/1995) was allowed.
4. The learned counsel for the petitioner/appellant would submit that the learned Magistrate has not properly considered Ext.P1 receipt issued by the Sub Inspector of Police, Mararikulam which would clearly prove that gold ingot weighing 40gms was handed over by the appellant (PW4) to the S.I. of Police, Mararikulam. The offence of burglary took place within the limits of Vaikom Police Station. Based on the complaint given by PW1, Crime No.238/89 was registered in that police station. After about 10 months of the occurrence the accused therein was arrested by PW5, the S.I. of Police, Mararikulam in connection with Crime No.66/1990 of Mararikulam Police Station. According to PW5, the accused disclosed the factum of sale of gold chain (snatched from the possession of PW2, the mother of PW1) at the shop of PW4 and pursuant to that disclosure statement and as led by the accused, PW5 went along with the accused to the shop of PW4. The evidence is to the effect that when PW4 was asked he deposed that the gold chain was melted by him and the gold ingot prepared out of it would be given to the police on that date ie; on 25.4.1990. PW4 handed over MO1 gold ingot to PW5 which was seized by PW5 as per Ext.P4 mahazar marked in that main case. Since the place of occurrence is within the limits of Vaikom Police Station the accused and the crime records were forwarded to Vaikom Police. Even though PW4 did not fully support the prosecution, the learned
