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2025 Supreme(Online)(Ker) 50003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
G. GIRISH, J
LAZLEE V.L. – Appellant
Versus
STATE OF KERALA – Respondent
CRL.MC NO. 769 OF 2025 | CRL.MC NO. 653 OF 2025
For the Appellants/Petitioners: SHRI.SERIN K.S.
For the Respondents: SMT.STIYA SIVAN, SMT.K.R.RENJU, SMT.ASITHA M.M., SMT.ANILA ANTONY, SMT.ANJITHA APREM, SMT.HARITHA HARINATH, SMT.ATHIRA SUDHEER V., SRI SUDHEER G.
Interim custody of property is governed by suitability criteria, not ownership; the custodian acts as a trustee pending trial.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 497 - Criminal Miscellaneous Cases - Petitioner challenging the order allowing interim custody of gold ingot to the respondent - The Magistrate’s role is limited to determining who is most suitable for interim custody pending trial - The person holding property under the interim custody order is a trustee and cannot use the property for personal benefit without court permission. (Paras 2, 5)
(B) Custody of Property - The criteria for custody is not ownership, but rather suitability to retain possession pending trial. Court confirmed that the 2nd respondent is the most suitable person for custody of the recovered gold ingot. (Paras 2, 5)
Facts of the case:
The petitioner is seeking to challenge a common order by the Judicial Magistrate granting interim custody of a gold ingot to the second respondent, who alleged that the petitioner misappropriated her property. The Magistrate ruled in favor of the second respondent after recovering the property during police investigation.
Findings of Court:
The learned Magistrate’s order was justified as the second respondent is entitled to have the interim custody of the gold ingot, and the order does not warrant interference.
Issues: The main issue addressed was whether the learned Magistrate made an error in granting custody of the property to the second respondent.
Ratio Decidendi: The court reasoned that the appropriate standard is not ownership but determining which party is most suitable to retain custody pending trial, supporting the Magistrate’s decision.
Result: Both petitions dismissed.
Key Points: - Interim custody of property is governed by suitability criteria, not ownership; the custodian acts as a trustee pending trial (!) . - The Magistrate’s role is limited to determining who is most suitable for interim custody (!) (!) . - The person holding property under interim custody is a trustee and cannot use it for personal benefit without court permission (!) . - Custody criteria is suitability to retain possession pending trial, not ownership (!) (!) . - The 2nd respondent was found most suitable for custody of the recovered gold ingot (!) (!) . - The learned Magistrate’s order allowing interim custody to the second respondent was justified (!) . - Both petitions challenging the interim custody order were dismissed (!) (!) . - The order was passed under Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (!) . - The subject matter involved alleged misappropriation and criminal breach of trust regarding gold ornaments (!) . - Result: Both criminal miscellaneous cases are dismissed (!) .
What is the standard for granting interim custody of property in criminal cases?
Who is entitled to interim custody of recovered property pending trial?
What is the role of a custodian under interim custody order?
| Table of Content |
|---|
| 1. petitioner's challenge to interim custody order regarding gold ingot. (Para 1 , 2) |
| 2. petitioner's claim against the interim custody determination. (Para 3) |
| 3. magistrate's suitable person ruling upheld. (Para 4 , 5) |
ORDER
[Crl.MC Nos.769/2025, 653/2025]
The common order passed by the Judicial First Class Magistrate Court, Tripunithura, on 03.12.2024 in C.M.P Nos.1599/2024 and 1608/2024, is under challenge in these petitions filed by a third party to the crime involved in that case, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’).
2. Crime No.421/2024 has been registered by the Hill Palace Police Station, Tripunithura, on the basis of a complaint by the 2nd respondent herein, alleging that the accused in the said case fraudulently and dishonestly obtained her gold ornaments and resorted to criminal breach of trust and misappropriation of the property by selling it to the jewellery shop conducted by the petitioner herein. The investigating ofÏcer later on recovered the gold ornaments in the form of gold ingots, and produced the same before the learned Magistrate. The defacto complainant/2nd respondent had filed C.M.P No.1599/2024 under Section 497 of BNSS , seeking interim custody of the above gold ingot recovered by the Investigating Agency from the petitioner herein. The petitioner also filed C.M.P No.1608/2024, seeking custody of the gold ingot. After evaluating the rival contentions of the parties, the learned Magistrate found that the 2nd respondent is the most suitable person who is entitled to retain the interim custody of that material object pending trial. Accordingly, the impugned common order was passed, requiring the 2nd respondent to execute a bond for Rs.2,00,000/- with two solvent sureties each for the like sum for the release of the gold ingot. Further directions were also passed in the aforesaid order against altering or changing its shape and model or disposing of the same. The 2nd respondent was also directed to produce the gold ingot as and when required by the court. The photographs of the gold ingot were also directed to be taken, and the images of the same were to be stored in a Pen Drive with a certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, from the photographer concerned. The Superintendent of the court concerned was directed to prepare an inventory of the gold ingot along with the photographs.
3. In the present petitions, the petitioner would contend that the learned Magistrate went wrong in releasing the gold ingot to the 2nd respondent. For the above reason, the petitioner seeks to set aside the aforesaid common order of the learned Magistrate, and to issue a direction to hand over the said item to him.
4. Heard the learned counsel for the petitioner, the learned counsel for the 2nd respondent and the learned Public Prosecutor representing the State of Kerala.
5. As already stated above, the order granting interim custody of the gold ingot to the 2nd respondent was passed by the learned Magistrate under Section 497 of BNSS , which is analogous to Section 451 Cr.P.C. As rightly observed by the learned Magistrate in Paragraph No.13 of the impugned order, the determination of the ownership or title of the property is none of the concern of the Magistrate while dealing with a petition under . As per the settled principles of law, the criteria to be looked into is which person is most suitable to retain custody of those items, pending the final disposal of the case. The person who gets the custody of the material object pursuant to an order passed under of , cannot dispose of the same or appropriate that property for his personal purpose without getting an order from the court concerned. The status of the person holding that property is that of a trustee of the property, who has to place it before the court for disposal, as and when directed. When viewed in the above perspective, the impugned order passed by the learned Magis
