An interim custody application for property pending trial is unsustainable if trial has concluded; the relevant provision becomes Section 452 for property disposal post-trial.

ORDER

The petitioner was cited as the fourth prosecution witness in C.C. No. 242/2020 on the file of the Court of the Judicial First Class Magistrate-II (Forest Offences), Punalur (‘Trial Court’, for short), which was registered against five accused persons for allegedly committing the offences punishable under Sections 457, 380 and 461 read with Section 34 of the Indian Penal Code.

2. The gravamen of the prosecution case is that;

On 09.08.1994, the accused persons had trespassed into the house of one Mohammedali (CW1) and committed theft of his gold ornaments worth Rs. 27,000/-, currency notes, two wristwatches and other properties. The prosecution further alleged that the first accused had sold a portion of the gold ornaments to the petitioner, who melted the same and made them to four gold ingots. The Investigating Officer recovered 49.500 grams of the gold ingots from the petitioner’s jewellery shop.

3. Claiming the interim custody of four gold ingots weighing 49.500 grams, the petitioner filed an application before the Trial Court. However, by Annexure C order, the said application was dismissed. Subsequently, the petitioner had filed another application, seeking the interim custody of the gold ingots, which was also dismissed by Annexure E order. Challenging Annexure E order, the petitioner preferred a revision petition before the Court of Sessions, Kollam, which was also dismissed by Annexure F order. Assailing Annexures C and E orders, the petitioner filed Crl.M.C No. 07/2021 before this Court, which was allowed by Annexure G order, directing the Trial Court to reconsider the matter afresh after hearing all parties. Consequent to the remand, the Trial Court issued notice to the respondents 2 and 3, who appeared and filed their objections and also filed applications claiming the interim custody of the above gold. By Annexure J order, the Trial Court dismissed the petitioner’s application but has allowed the application filed by the respondents 2 and 3. Annexure J order is ex-facie erroneous and unsustainable in law. The Trial Court has failed to consider the fact that there is no material to prove that the gold belongs to the respondents 2 and 3. Instead, the gold was seized from the petitioner’s jewellery. Hence, Annexure J order may be set aside.

4. I have heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the respondents 2 and 3.

5. On a perusal of the materials on record, it is seen that the Trial Court had split up the case against the accused 1 to 3 and 5 and proceeded with the trial as against the fourth accused. Later, by Annexure A judgment dated 28.10.2010, the Trial Court found that the prosecution had miserably failed to prove beyond reasonable doubt that the first accused had committed the above offence and had acquitted him. It is after Annexure A judgment was passed, that the petitioner filed an application under Section 451 of the Code of Criminal Procedure (Cr.PC), seeking interim custody of the gold.

6. In the above context, it is apposite to refer to Sections 451 and 452 of the CR.P.C., which read as follows:

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

When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the 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 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) propert