MUKUNDAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Annexure A2 order passed by the Judicial First Class Magistrate Court, Wadakkanchery on an application moved under Section 451 of the Code of Criminal Procedure, for short 'the Code' is challenged in the above petition. Petitioner claims to be the owner of a room locked by the police in connection with a crime case which is pending investigation. Key of that room was produced before court. Petitioner applied for handing over the key to have interim custody of the room. That application was dismissed by the magistrate holding that the criminal court has no jurisdiction or empowerment to deal with immovable property. Learned counsel for the petitioner submits that the view taken by the magistrate holding that he is incompetent to pass an order under Section 451 of the Code over an immovable property is patently erroneous and unsustainable under law.

(2.) In one of the shop rooms of the petitioner, a tenant was in occupation. He carried out some financial activities in that premises in violation of the statutory prescriptions. The Sub Inspector of Police, Erumapetty Police Station, after conducting a raid over that premises and being satisfied that the premises were being used for operating financial dealings in violation of statutory prescription locked the room. A crime was registered as Crime No. 228 of 2012 of Erumapetty Police Station, for offences under Sections 3 and 4 of the Prize Chits Money Circulation Scheme (Banning) Act, 1978 and Section 17 of the Kerala Money Lenders' Act, against the occupant/tenant and the key of the room was produced before the court. Petitioner/landlord, thereupon moved an application for return of the key, styling his petition as one filed under Section 451 of the Code. That application was dismissed by the magistrate holding that he has no jurisdiction to pass any order over an immovable property.

(3.) Indisputably, the investigation of the crime is still in progress. So much so, at this stage, after a report is filed by the police over the seizure of property, no enquiry or trial is pending before the court enabling the magistrate to pass order under Section 451 of the Code. The only provision that is applicable in the facts and circumstances presented, at this stage, is under Section 457 of the Code {See Thimothy v. State of Kerala, 1987 1 KerLT 82 . Though the word 'property' stated in Section 457 of the Code is not explained as in the case of that word in Section 451 of the Code, whereunder it includes both movable and immovable, that is no ground to hold that the magistrate is incompetent to pass orders over an immovable property u/s 457 of the Code where its seizure has been made and reported to him by the police. In fact, such a question does not require a detailed scrutiny since this court in Alikunju v. Alikunju, 1960 AIR(Ker) 343 has held almost in a similar fact situation over the closing of a house and its keys produced by the police, the magistrate has empowerment to pass conditional orders for release of the keys to any person being satisfied of his entitlement for collecting such keys. Where the investigation of the case is going on, whether any person is entitled to get release of the keys produced before the court, if so canvassed of before the magistrate, has necessarily to be examined, and decided where the seizure by locking of the room is reported, and the key of the room is produced. This court in Alikunju's case, repelling the challenge against the order of the magistrate directing return of the key of a house, to a person who claimed to be the occupant of such house, has held thus: