Crl.Appeal No. 1328/2014: This appeal has been instituted under Sec.454 of the Code of Criminal Procedure to impugn the judgment and order dated 23.3.2014 rendered in the Sessions Case, S.C.No. 300/2008 on the file of the Additional Sessions Judge, (Adhoc)-I, Manjeri Division, Malappuram district, with the prayer to modify the said impugned order therein passed under Sec. 452(1) of the Code of Criminal Procedure to the extent it does not give an option to the appellant to execute a bond as envisaged under Sec. 452(2) of the Code of Criminal Procedure and for order of this Court to modify the said impugned order by giving such an option to the appellant Bank to execute a bond under Sec. 452(2) of the Cr.P.C. and to get the property already released without waiting for the appeal and for other related prayers.
2. By the impugned judgment and order rendered on 23.3.2014 in S.C.No. 300/2008, it has been inter alia ordered as follows (as can be seen from the relevant portions on page Nos.248, 249 and 250 of the impugned judgment):
“M.O.1 to M.O.318 gold ornaments and M.O.319 and M.O.320 are gold ingots made out of melting stolen ornaments are ordered to be returned to South Malabar Gramin Bank on proper receipt by authorized officer of the Bank.
xxx xxx xxx M.O.347 and M.O.348 bunch of keys ordered to be returned to South Malabar Gramin Bank, Chelambra branch on proper receipt by an authorized officer of the Bank.
xxx xxx xxx The amounts given by A1 and A2 for the purchase of landed properties was seized. The said amount was given out of the sale proceeds of stolen properties from the bank. The amount seized from Cinoy Joy is the amount given by Asok Sait towards the purchase of gold ornaments stolen in this case. Hence the said amount is in fact the sale proceeds of stolen gold ornaments from the bank. In the circumstance, the amounts seized in this case and remitted under court deposits are also ordered to be returned to the Bank on proper receipt by an authorised officer of the Bank.
The order relating Innova Car to PW19 Cinoy Joy is made absolute since he has deposited Rs. 1,83,250/- which was paid by A1 to purchase the said car in the name of PW19. The margin money of Rs. 1,83,250/- was paid by A1 out of sale proceeds of stolen articles from the bank. Hence the said amount is also ordered to be returned to the South Malabar Gramin Bank, Chelambra on proper receipt by an authorised officer of the Bank.”
It has also been ordered that the orders regarding the disposal of the properties seized in case are to be carried out only after the appeal period. The said impugned order has been passed by virtue of the enabling powers under Sec.452(1) of the Code of Criminal Procedure. Sub section (2) of Sec. 452 provides that an order made under Sec.452(1) for delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes bond, with or without sureties, to the satisfaction of the court, engaging to restore such property to the court if the order made under sub-section (1) Sec.452 is modified or set aside on appeal or revision.
3. Sub section (4) of Sec. 452 provides that except where the property is livestock or is subject to speedy and natural decay or where a bond has been executed in pursuance of Sec.452(2), an order made under Sec.452(1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.
4. The limited grievance projected by Sri.P.V.Kunhikrishnan, the learned Standing Counsel appearing for the Kerala Gramin Bank (the successor to the earlier South Malabar Gramin Bank), who is the appellant in this case, is that the court below has omitted to place the condition in the impugned order that the appellant should execute a bond with or without sureties to the satisfaction of the court engaging to restore such property to the court if the order made under Sec.452(1) is modified or set aside on appeal or revision. It is submitted by the appellant Bank that only if such a condition regarding execution of the bond as mandated in Sec.452 (2) is included in the impugned order, the exception culled out in Sec.452(4) could be claimed by the appellant Bank. If such a condition that execution of the bond as envisaged in Sec.452(2) was included to form part and parcel of the impugned order, then the appellant could validly and lawfully claim the benefit of the exception culled out in Sec.452(4) of the Code of Criminal Procedure. The exceptions culled out in sub section (4) of Sec.452 is where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of Sec.452 (2). Unless any of the three specifically enumerated exceptions carved out in Sec. 452(4) arises in a particular case, the benefit of the said exception is not claimable by the applicant beneficiary and in the absence of such an exception arising in a case, the order made under Sec.452(1) could not be carried out for two months or when an appeal is presented, until such appeal has been disposed of.
5. It is pointed out by the appellant Bank that earlier the court below had directed the release of an amount of Rs.
24,93,809/- to the appellant herein (South Malabar Gramin Bank, Chelambra) as per order dated 13.8.2008 on Criminal Miscellaneous Petition No.1978/2008 by the Judicial First Class Magistrate's Court, Parappanangadi under Sec.451 of the Code of Criminal Procedure, during the pendency of the above said crime and the said amount of Rs. 24,93,809/- forms part of the monies said to have been stolen from the custody of the appellant Bank and even that amount was directed to be released by the court below during the pendency of the trial and later, as per the direction on para No. 2 on page 250 of the present impugned judgment herein, the Sessions Court has made the order of release of the above said amount of Rs. 24,93,809/- in favour of the appellant Bank as absolute under Sec.452(1) of the Code of Criminal Procedure. All the other properties and monies enumerated in the earlier part of this judgment are in relation to other transactions in this crime and if the interim custody of the said properties and monies are not given to the appellant Bank, during the pendency of the appeals arising out of the criminal conviction in the above said Sessions Case, then the rights and interests of the Bank would be unnecessarily prejudiced and injured. It is submitted by the learned counsel appearing for the appellant Bank that the appellant Bank is prepared to execute a bond before the court below concerned as mandated in Sec.452(2) of the Code of Criminal Procedure that if the interim custody of all the monies and property enumerated in the earlier part of this judgment is given to the Bank, then the Bank would undertake to restore such said property to the court, if the order made under Sec.452(1) is modified or set aside on appeal or revision or if it is modified by any competent court that ultimately decides in any appropriate proceedings arising out of the above said Sessions Case, that the said monies and properties are liable to be returned back by the Bank. It is therefore submitted that the impugned order may be modified to the limited extent wherein the said order has not placed such a condition regarding execution of the bond as envisaged in Sec.452(2) of the Code of Criminal Procedure and this Court may modify the said impugned order of the court below in this appeal by placing such condition that the appellant should execute a bond with or without sureties to the satisfaction of the court below as mandated in Sec.452(2) of the Code of Criminal Procedure.
6. Heard Sri.P.V.Kunhikrishnan, learned counsel appearing for the appellant Bank and and learned Public Prosecutor appearing for the respondent-State of Kerala.
7. The learned Public Prosecutor, on instructions, submits that the respondent-State/prosecution agency has no objection whatsoever in this Court modifying the impugned order of the court below for placing a condition that the appellant shall execute a bond as envisaged in Sec.452(2) of the Code of Criminal Procedure and that further details regarding the claim of the property may be remitted back to the court below for appropriate consideration in accordance with law.
8. In the light of the submissions made by the learned counsel for the appellant Bank and the learned Public Prosecutor appearing for the respondent-Prosecution and on a appreciation of totality of the facts and circumstances of this case, it is ordered that the impugned order passed by the court below under Sec. 452(1) of the Code of Criminal Procedure to the limited extent that it does not place a condition that the appellant should execute a bond as envisaged in Sec.452(2) of the Code of Criminal Procedure is modified and it is ordered that the appellant shall execute a bond to the satisfaction of the court below engaging to restore such properties and monies, which are mentioned in the earlier part of this judgment and which are reiterated hereinbelow for easy reference of the court below, if the order made under Sec.452(2) is modified or set aside on appeal or revision or as and when directed by any competent court in appropriate proceedings relatable to the conviction and other related issues arising out of the above said Sessions Case. The aforementioned properties and monies are reiterated hereinbelow for easy the reference of the court below.
“M.O.1 to M.O.318 gold ornaments and M.O.319 and M.O.320 are gold ingots made out of melting stolen ornaments are ordered to be returned to South Malabar Gramin Bank on proper receipt by authorized officer of the Bank.
xxx xxx xxx M.O.347 and M.O.348 bunch of keys ordered to be returned to South Malabar Gramin Bank, Chelambra branch on proper receipt by an authorized officer of the Bank.
xxx xxx xxx The amounts given by A1 and A2 for the purchase of landed properties was seized. The said amount was given out of the sale proceeds of stolen properties from the bank. The amount seized from Cinoy Joy is the amount given by Asok Sait towards the purchase of gold ornaments stolen in this case. Hence the said amount is in fact the sale proceeds of stolen gold ornaments from the bank. In the circumstance, the amounts seized in this case and remitted under court deposits are also ordered to be returned to the Bank on proper receipt by an authorised officer of the Bank.
The order relating Innova Car to PW19 Cinoy Joy is made absolute since he has deposited Rs. 1,83,250/- which was paid by A1 to purchase the said car in the name of PW19. The margin money of Rs. 1,83,250/- was paid by A1 out of sale proceeds of stolen articles from the bank. Hence the said amount is also ordered to be returned to the South Malabar Gramin Bank, Chelambra on proper receipt by an authorised officer of the Bank.”
9. The impugned judgment dated 23.3.2013 passed under Sec.452(1) of the Code of Criminal Procedure in S.C.No.300/2008 on the file of the above said Sessions Court shall stand modified to the above said extent. Since the above said modification of the impugned judgment has been made, needless to say, the appellant Bank is at liberty to claim the benefit of exception arising out of Sec.452(4) of the Code of Criminal Procedure and to that extent the directions issued on the penultimate paragraph of page 251 of the impugned order, as if the said exception is not claimable by the appellant will stand superseded.
With these observations and directions, the impugned order passed under Sec.452(1) of the Code of Criminal Procedure shall stand modified.
Crl.Appeal No. 1179/2014:
10. This is an appeal filed under Sec.454 of the Code of Criminal Procedure to impugn the order dated 25.8.2014 in Criminal M.P. No.1202/2013 in S.C.No.300/2008 on the file of the Additional Sessions Judge-I, Manjeri. The Sessions Court concerned had earlier passed the judgment and order dated 23.3.2014 in S.C.No. 300/2008 on its file, wherein it had passed orders for return of certain monies and properties to the appellant Bank as enumerated in the judgment given supra in connected Crl.Appeal No. 1328/2014.= Since there was no condition placed on the appellant Bank to execute any bond as envisaged in Sec. 452(2) of the Code of Criminal Procedure, the exception under Sec. 452(4) could not be claimed by the appellant Bank and therefore the court below had also ordered in the penultimate paragraph of its judgment and order dated 23.3.2013 on page 251 of that judgment that the above said orders passed on 23.3.2013 under the enabling powers under Sec.452 (1) of the Code of Criminal Procedure regarding disposal of the said properties and monies seized in this case are to be carried only after the appeal period. The court below was justified in so ordering because the exception culled out in Sec.452(4) of the Code of Criminal Procedure could not be claimed by the appellant as the said order passed on 23.3.2013 did not place a condition that the appellant Bank should execute a bond as envisaged in Sec.452(2) of the Code of Criminal Procedure. By the judgment of this Court in connected Crl.Appeal No.1328/2014 given supra, this Court has already allowed Crl.Appeal No.1328/2014 to the extent of modifying the said impugned order passed under Sec. 452(1) of the Code of Criminal Procedure on 23.3.2013 in S.C.No.300/2008 by modifying those directions and placing a condition therein that the appellant shall also execute a bond to the satisfaction of the court below as mandated in Sec.452 (1) of the Code of Criminal Procedure along with certain other conditions. Therefore, as already held in the said judgment, as the impugned order passed under Sec.452(1) of the Code of Criminal Procedure on 23.3.2013 by the court below, has already been modified with the condition that the appellant Bank shall execute a bond as mandated in Sec.452(2) of the Cr.P.C., the appellant could claim the benefit of the exception culled out in Sec.452(4) of the Cr.P.C. It is only in a case where none of the three exceptions culled out in Sec.452(4) come into place that an order made under Sec. 452(1) shall not be carried out for two months or when an appeal is presented, until such appeal has been disposed of. Now that the appellant could validly claim the benefit of the said exception arising out of Sec.452(4), the application of the appellant in Criminal Miscellaneous Petition No.1202/2013 in S.C.No. 300/2008 requires reconsideration by the Sessions Court concerned. In this view of the matter, the impugned order dated 25.8.2014 passed by the Court of the Additional Sessions Judge-I, Manjeri in C.M.P.No.1202/2013 in S.C.No.300/2008 is set aside. Criminal Miscellaneous Petition No.1202/2013 stands restored to the file of the court below. The court below will consider the matter afresh after hearing the counsel for the appellant and the learned Public Prosecutor and pass fresh orders. Needless to say, it is for the appellant to execute a bond as conceived in Sec.452(2) of the Code of Criminal Procedure and as ordered by this Court in the judgment rendered today in connected Crl.Appeal No. 1328/2014.
11. The application made by the appellant Bank as per the above said Criminal Miscellaneous Petition No.1202/2013 mentions that the total amount involved in respect of the monies and properties, which are the subject matter of that application come to Rs. 73,45,750/- apart from the gold ornaments. The court below in the impugned order has also proceeded on the basis that the said total amount is Rs. 73,45,750/-. The learned Public Prosecutor has also filed a report dated 16.12.2014 through the investigating officer concerned stating in paragraph 3 thereof that the monies involved in respect of these material objects is Rs. 73,45,750/- and that the gold ornaments come to about 63 kg. 42 gm, 490 mg.
12. This Court by order dated 9.12.2014 had called for a report from the Sessions Court as to the exact computation of the monies involved in the above said case and the Additional Sessions Court-I, Manjeri as per report dated 16.12.2014 has informed the Registry that an amount of Rs. 1,83,280/- is seen kept in the criminal court deposit of that court and further an amount of Rs. 52,21,101/- was reported to be kept in the criminal court deposit of Judicial First Class Magistrate's Court-I, Parappanangadi. Therefore, there appears to be some discrepancy in the figures relating to the monies involved in the claims made by the appellant Bank in the application. It is open to the appellant and the Prosecution to give all the material particulars about the exact computation of the monies involved in this regard and the Sessions Court would furnish all relevant materials from its records as well as from the records of the jurisdictional Magistrate concerned to the appellant Bank and to the prosecution as to how they have arrived at the above said figures of the monies involved and to enable the appellant to establish the exact amounts of monies involved in their claims in their application. While considering the application of the appellant afresh for return of the gold ornaments and monies by virtue of the enabling powers under Sec.452(1) of the Code of Criminal Procedure, the court below will take into account that the exception envisaged under Sec.452(4) of the Code of Criminal Procedure could be claimed by the appellant Bank, in view of the condition to execute the bond as mandated in Sec.452(2) of the Cr.P.C. It would be borne in mind of the court below that the money of Rs. 24,93,809/- mentioned in the second para of page 250 of the impugned order dated 23.3.2013 in S.C.No. 300/2008 has already been released and the order of the release of the money of Rs. 24,93,809/- to the appellant Bank has been made absolute by the Sessions Court and that those monies are said to have been part of the amounts stolen from the appellant Bank. The court below should consider the application of the appellant Bank by taking into account all relevant aspects and subject to the condition that the appellant Bank will execute the bond as directed in the judgment of this Court rendered today in Crl.Appeal No.1328/2014, etc. It will be open to the court below to insist for preparing detailed inventory of the articles in question and, if necessary, in taking videographs/photographs of such articles, at the expenses to be borne by the appellant Bank. The court below will pass orders on the said application without further delay at any rate, within a period of six weeks from the date of production of a certified copy of this judgment, after reasonable opportunity to both sides.
With these observations, the Criminal Appeal stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge