The High Court directed the reassessment of interim custody applications under Section 497 of the BNSS, emphasizing the rightful claimant's entitlement to property.

COMMON ORDER

As the Criminal Miscellaneous Cases are filed assailing the common order passed by the Court of the Judicial First Class Magistrate-I, Ponnani (‘Trial Court’, for brevity), dismissing applications filed under Section 497 of the Bharatiya Nagarik Suraksha Sanhita (‘ BNSS ’, for short), they are consolidated, jointly heard, and are being disposed of by this common order.

2. Crime No. 545/2024 was registered by the Ponnani Police Station, Malappuram District, as against the accused persons alleging the commission of the offences under Sections 457, 461 and 380 of the Indian Penal Code.

3. The crux of the prosecution case is that;

Between 10.04.2024 and 13.04.2024, the accused persons had trespassed into the house of the defacto complainant (the petitioner in Crl.M.C No. 526/2026)

and committed theft of his gold ornaments and valuable household articles. The accused persons melted the gold ornaments into two gold ingots weighing 500 and 600 grams, respectively, and sold them to the petitioner in Crl.M.C No. 1438/2025, the proprietor of ‘Thooba Jewellery’.

4. Claiming interim custody of the gold ornaments, the de facto complainant filed CMP No. 4998/2024, and the jeweller filed CMP No. 4942/2024 before the Trial Court.

5. The Trial Court, consolidated and jointly heard the applications and, by the impugned common order dated 16.01.2025, dismissed both the applications on the findings that the police had not produced the statement of the witness under Section 180 of the BNSS and the evidence was required to consider the applications. Both the petitioners in the Criminal Miscellaneous Cases contend that the common order is palpably erroneous and unsustainable in law. The Trial Court has failed to comprehend the scope and the purport of Section 497 of the and that the lawful owner is entitled to interim custody of the disputed articles. Hence, the impugned common order may be set aside.

6. I have heard the learned counsel appearing for the petitioner in Crl.M.C. No. 526/2026, the learned Senior Counsel appearing for the petitioner in Crl.M.C.

No. 1438/2025 and the learned Public Prosecutor. 7. A reading of the common order substantiates that the learned Magistrate has not gone into the merits of the applications. Instead, the learned Magistrate has dismissed the applications on the sole finding that the police have not produced any statement of the witnesses.

8. It is now admitted by all parties that the Investigating Officer has completed the investigation and filed the final report.

9. It is only germane to refer to Section 497 of the BNSS , which reads as follows:

“Order for custody and disposal of property pending trial in certain cases.--

(1) When any property is produced before any Criminal Court or the Magistrate empowered to take cognizance or commit the case for trial during any investigation, inquiry or trial, the Court or the Magistrate may make such order as it thinks fit for the proper custody of such property pending the conclusion of the investigation, inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court or the Magistrate may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of Explanation.-- For the purposes of this section, "property" includes--

(a) property of any kind or document which is produced before the Court or which is in its custody;

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

(2) The Court or the Magistrate shall, within a period of fourteen days from the production of the property referred to in sub-section (1)