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2023 Supreme(Online)(KER) 14105
HIGH COURT OF KERALA
P.V. KUNHIKRISHNAN, J
REMYA RAJAN
– Appellant
Versus
ROY MATHEW – Respondent
Crl.MC 9646 2022
MANU RAMACHANDRAN, M.KIRANLAL, R.RAJESH (VARKALA), SAMEER M NAIR, DHANALAKSHMI V.K., GEETHU KRISHNAN, SAILAKSHMI MENON, C.S.MANILAL, SRI RENJITH TR, S.NIDHEESH(K/1061/2007)
Natural justice mandates that all parties must be heard before a decision affecting their rights is made.
Headnote:
Custody - Interim custody of property - Section 451 Cr.P.C. - The court set aside the previous order allowing interim custody due to lack of hearing the petitioners and required fresh consideration by the magistrate.
Fact of the Case:
The petitioners challenged an order allowing the 1st respondent interim custody of gold ornaments seized in a criminal case, arguing they were not heard prior to the decision.
Issues: Whether the petitioners were given a fair opportunity to present their case regarding the custody of seized property before the magistrate.
Ratio Decidendi: The magistrate's failure to provide an opportunity for hearing before passing the order violated principles of natural justice.
Final Decision: The previous order was set aside, and the magistrate was directed to reconsider the matter after hearing both parties.
ORDER
This criminal miscellaneous case is filed challenging Annexure-A3 order dated 07.11.2022 in Crl.M.P.No.1247/2022 in Crime No.186/2022 of Chittar Police Station. Petitioners are accused Nos.1 and 4 in the above crime. The defacto complainant in the above crime is the 1st respondent in this case. The defacto complainant filed an application under Section 451 Cr.P.C. for interim custody of gold chains, bracelets and rings seized in connection with the above crime. The learned Magistrate, as per the impugned order, allowed that application on condition that the 1st respondent will execute a bond and will produce the same as and when required. The petitioners challenged that order mainly with the contention that they were not heard before passing Annexure-A3 order. This is strongly opposed by the counsel for the 1st respondent. The counsel for the 1st respondent produced a certified copy of the order sheet. From the order sheet it can be seen that no objection is endorsed in the file by the 1st petitioner. This Court also directed the Registry to get a report from the learned Magistrate to find out whether notice was issued to the petitioners. The learned Magistrate observed that the 1st petitioner made an endorsement in the order sheet to the effect that he has no objection. But it is stated that as per the proceedings, no notice was seen issued the petitioners in that petition.
2. After hearing both sides, I am of the considered opinion that one more opportunity can be given to the petitioners to raise their contentions before the trial court. It is true that some endorsement is made by the 1st petitioner to the effect that he has no objection in releasing the material object. But Annexure-A3 is not an order on merit. When there is rival contention, it is the duty of the learned Magistrate to pass a detailed order considering the contentions of the parties. I make it clear that I have not considered the matter on merit and the learned Magistrate is free to pass appropriate orders. To facilitate the learned Magistrate to pass fresh order, Annexure-A3 order can be set aside. But the gold ornaments released to the 1st respondent as per Annexure-A3 will continue with him till final orders are passed in Crl.M.P. No.1247/2022.
Therefore, this Criminal Miscellaneous Case is disposed of in the following manner:
1. Annexure-A3 order is set aside.
2. The Judicial First Class Magistrate Court, Ranni is directed to reconsider Crl.M.P. No.1247/2022, after affording an opportunity of hearing to the petitioners and the 1st respondent, as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of this order.
3. The petitioners and the 1st respondent shall appear before the trial court, along with the certified copy of this order, on 15.11.2023.
4. It is made clear that this Court has not considered the matter on merit and the learned Magistrate is free to pass appropriate orders in accordance to law, after hearing the parties.
5. Till final orders are passed in Crl.M.P.
No.1247/2022, the gold ornaments shall be kept by the 1st respondent, subject to the result of the final order in the above petition.
sd/-
P.V.KUNHIKRISHNAN JUDGE
1247/2022 IN CRIME NO.186/2022 OF CHITTAR POLICE STATION, PATHANAMTHITTA DISTRICT UNDER S. 451 OF CR.P.C BEFORE JFMC, RANNI Annexure A3 THE TRUE COPY OF THE ORDER DATED
07.11.2022 OF JFMC, RANNI IN CRL.M.P NO. 1247/2022 IN CRIME NO.186/2022 OF CHITTAR POLICE STATION, PATHANAMTHITTA DISTRICT Annexure A4 THE TRUE PHOTOGRAPH OF THE PETITIONER NO.1/ACCUSED NO.1 WEARING THE PEARL-
STUDDED GOLD CHAIN (SERIAL NO.V(D) IN T.R NO.526/2022 OF JFMC, RANNI)
Annexure A4(a) THE TRUE COPY OF THE TAX INVOICE NO.JBTPTA-4077 DATED 09.09.2020 BY JOSCO BULLION TRADERS PVT.LTD. OF THE PEARL-STUDDED GOLD CH
