The court has the duty to decide the proper custody of property pending trial, including determining the person with a better claim, and can decide who has a better title if there are rival claimants.

ORDER :

Petitioner is aggrieved by Annexure A10 order passed by the Judicial First Class Magistrate Court, Karunagappally in C.M.P.No.2146/2023 in Crime No.1000/2023 of Karunagappally Police Station. It is an order passed in a petition filed under Section 451 of the Code of Criminal Procedure, 1973 (in short, Cr.P.C) seeking interim custody of an elephant named Raman involved in Crime No.1000/2023 of Karunagappally Police Station. The above case is filed alleging offences punishable under Section 406 and 420 IPC.

2. Petitioner herein is the defacto complainant in Crime No.1000/2023 of Karunagappally Police Station and the petitioner in C.M.P.No.2146/2023 on the file of the Judicial First Class Magistrate Court, Karunagappally. Mata Amritanandamayi Math, Vallikkavu is the owner of an elephant named Raman, is the submission of the petitioner. Annexure A1 is the Certificate of Ownership issued by the Principal Chief Conservator of Forests (Wildlife) & Chief Wildlife Warden, Kerala dated 30.07.2014. Annexure A2 is the Certificate of Implantation of Microchip dated 10.06.2008 issued by the Kerala Forests and Wildlife Department. Annexure A3 is the authorisation letter issued to the petitioner from Mata Amritanandamayi Math to conduct the case and Annexure A4 is the relevant page of the data book of captive elephant maintained by Kerala Forests & Wildlife Department. It is the case of the petitioner that, a perusal of Annexures A1, A2 and A4 would show that Mata Amritanandamayi Math is the owner of the elephant. It is the case of the petitioner that the elephant was gifted to the Madom by one Sri. Sadanandan and since the elephant was showing the symptoms of Musth, it was entrusted to the 3rd respondent to look after the elephant as he was having other elephants in his ownership. It is the case of the petitioner that, subsequently, through social media and other inputs, Amritanandamayi Math got information that the elephant is harassed at the hands of the mahouts and other attending employees engaged by the 3rd respondent. Hence it was decided by the Math to take back the elephant from the place of the 3rd respondent is the submission of the petitioner. But the 3rd respondent refused to handover the elephant and hence a complaint was filed by the petitioner which led to Annexure A5 F.I.R. After registration of Annexure A5 F.I.R., the petitioner filed an application under Section 451 Cr.P.C. for the interim custody of the elephant. Annexure A6 is the application. The 3rd respondent appeared and filed objection in the application as evident by Annexure A7. Along with Annexure A7, the 3rd respondent produced two documents as gift deeds showing that the elephant was handed over to Sri. Sadanandan by the Madom as per the agreement dated 18.02.2017. Annexure A8 is the alleged gift deed. The second document is another gift deed dated 28.02.2017 alleged to have been executed by Sri. Sadanandan in favour of the 3rd respondent. Annexure A9 is the agreement. According to the petitioner, Annexures A8 and A9 are forged documents. It is also the case of the petitioner that, Section 39(3) of the Wild Life (Protection) Act, 1972 clearly prohibits transfer by way of gift without the permission of Chief Wild Life Warden. Hence it is stated that, the 3rd respondent has no authority to keep the elephant based on Annexures A8 and A9. But the learned Magistrate dismissed the petition as per Annexure A10 order. Aggrieved by Annexure A10 order, this Crl.M.C is filed.

3. Heard Adv. Sri.C.Unnikrishnan, the learned counsel appearing for the petitioner, the learned Senior counsel Adv. Sri.S. Sreekumar as instructed by Adv. Sri. Martin Jose P, appearing for the 3rd respondent and the learned public prosecutor. Even though notice was issued to the 4th respondent, who is alleged to have executed Annexure A9 gift deed, he refused to appear before this Court.

4. Counsel for the petitioner submitted that the learned Magistrate has not considered the facts before reje