SAJIDEVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The common order passed by the Judicial First Class Magistrate's Court, Karunagappally in C.M.P. Nos. 2973 of 2009 and 3040 of 2009, both in Crime No. 91 of 2009 of Chavara Police Station, is under challenge in these Crl. Miscellaneous Cases filed under Section 482 of the Code of Criminal Procedure. They were directed respectively against the orders in C.M.P.Nos. 2973 of 2009 and 3040 of 2009. The parties are referred to hereafter in this order according to their respective status in Crl.M.C. No. 1360 of 2009, The petitioner herein was the petitioner m C.M.P. No. 3040 of 2009 and the second respondent in C.M.P.No. 2973 of 2009 and the status of the second respondent herein in the said C.M.Ps. was exactly in the vice versa. The petitioner seeks a further direction to the court below to hand over interim custody of the vehicle involved in the cases. Since they are directed against the common order and common facts and issues are involved, they are being disposed of by this common order. The common facts and issues may concisely be stated as hereunder:

(2.) Before considering the various contentions raised by both sides and the correctness of the impugned order, I think it is appropriate and apposite to deal with the scope and application of Section 451 Cr. P.C. and also the considerations to be taken into account while exercising the said power.

(3.) The summary power to order custody granted to a Magistrate under Section 451 CrP.C. is to be exercised expeditiously and judiciously in respect of any property produced before that Court in the circumstances contemplated under the said section. However, it should not be exercised when the competent civil court is in seizing of the matter to decide the question of ownership and right of possession. There cannot be any doubt that the said power of the Magistrate does not extend to the determination of ownership of the property so produced and the main purpose of such exercise when the concerned property is a vehicle shall be (i) the owner of the vehicle should not suffer on account of its remaining unused or by its misappropriation and (ii) the court or police would not be required to keep the vehicle in safe custody as the vehicle is meant for user and for want of user, it is likely to get rusted. The interim custody of any such vehicle can only be a custody in trust for and on behalf of the court and its very purpose is nothing but to protect and preserve the property, pending trial and also to ensure control over it. That is why while exercising the power, the court imposes or incorporates necessary precautions and conditions.