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2023 Supreme(Online)(KER) 27607
HIGH COURT OF KERALA
P. G. Ajithkumar, J
BENNY @ PATHROSE – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 6622 2014
SRI.G.P.SHINOD, SRI.MANU V., SRI.RAM MOHAN.G.
A petitioner cannot claim custody of property related to a pending case without proving ownership, irrespective of acquittal of a co-accused.
Headnote:
Gold - Criminal Procedure - Section 451 - The court upheld the dismissal of the petitioner's application for interim custody of the gold ornaments, highlighting that the ongoing trial against the co-accused and prosecution's ownership claims were pivotal in this decision.
Fact of the Case:
The petitioner sought the return of a gold ingot recovered from him, claimed to be sold by an accused in an ongoing trial. The Magistrate dismissed his application, stating ownership and the pending status of the co-accused's case were crucial.
Finding of the Court:
The court found no merit in the petitioner's claims for the gold's custody due to the pending trial against co-accused and the prosecution's contention that the gold originally belonged to a charge witness.
Issues: Whether the petitioner is entitled to interim custody of the gold while the case against the co-accused is still pending.
Ratio Decidendi: The court ruled that without proving ownership or the final resolution of co-accused's case, the application for custody could not be entertained.
Final Decision: Crl.M.C is dismissed.
O R D E R
The above Crl.M.C is filed challenging Annexure-I order.
Annexure-A final report was filed in Crime No.136 of 2002 Thiruvalla Police Station alleging offences punishable under Sections 457, 461 and 308 r/w Section 34 of IPC. The petitioner was the charge witness No.2 in Annexure-A charge sheet. According to the petitioner, the property stolen were sold by the accused No.1 to him and that gold ingot weighing 100 grams (marked as MO1 in the trial) was recovered from his jewellery. It is the case of the petitioner that he was compelled to give the gold ingot to the police and no recovery was effected as alleged in Annexure-A charge sheet. Annexure-A charge sheet was taken cognizance as C.C.No.14 of 2004. Only the accused No.1 faced trial. Neither CW1 nor his father-in-law were examined. The learned Magistrate, as per Annexure-B judgment dated 11.03.2008 acquitted the accused No.1 who stood trial. The case against the accused No.2 was split up and refiled as C.C.No.107 of 2008. The petitioner filed Annexure-C petition before the learned Magistrate under Section 451 of Cr.P.C for release of the gold. The same was dismissed stating that the case against the other accused is pending. Aggrieved by that order, this Crl.M.C is filed.
2. When this Crl.M.C came up for consideration on
09.08.2023, there was no representation for the petitioner. Again, when the matter came up for consideration on 04.09.2023, this Court passed the following order:
“The Registry will get a report from the lower court whether LP 43/12, which arises from C.C.No.107/2008 on the file of Judicial First Class Magistrate Court, Thiruvalla is still pending. The Registry will also verify whether LP 43/12 is quashed by this court.”
3. The learned Magistrate submitted the report as directed by this Court. The relevant portion of the same is extracted herein:
“With reference to the subject matter above referred to, I may humbly submit the following facts for kind consideration.
CC 107/2008 on the file of this court was transferred to the Long Pending Registrar as LP No. 43/2012. Thereafter, Non- Bailable Warrant was issued to the accused. The case stands posted to 03/11/2023 for return of warrant against the
4. In the light of the same, it is clear that the case against the co-accused is pending. In the impugned order, the learned Magistrate considered this aspect in detail. Paragraphs 6 and 7 of Annexure-I order is extracted herein:
“6. Prosecution case is that the gold ornaments belong to CWI was sold by the accused in the shop room of CW2. Even though it was alleged by the petitioner that he does not know the accused and was ready to produce documents proving his title, no such documents were produced. It is found that CMP.2790/07 and CMP.9816/11 the applications filed by the petitioner u/s.451 Cr.P.C were dismissed by my learned predecessor as per order dated:21.01.11 and 31.01.12 respectively.
7. Even though one of the accused was acquitted the case against 2nd accused was refiled as CC.107/08 and is now pending as LP.43/12. The gold ingot was identified as MOI in the first trial. The petitioner would have been entitled to get interim custody of the gold provided he was the owner of the property. The fact that one of the accused was acquitted does not entitle the petitioner to get custody of the gold especially when the prosecution case is that the gold belongs to charge witness number 1. As per the prosecution case recovery was effected from the Jewellery of the petitioner. Statement was recorded u/s.161 Cr.P.C by the police and as per the statement of the petitioner and the accused had sold gold ornaments the shop room of CW2, that he was not aware that the same were stolen property. As the prosecution is not having case that the property absolutely belong to the petitioner, it is found that he is not entitled to get custody of the gold ornaments while the case is pending in register of long pending case: Hence the application is dismissed.”
