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JUDGEMENT WITH RESPECT TO PROPERTIES OF ST MARY'S JACOBITE CHURCH. VADAVUKODE

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  • Chev. Adv. Philip John
    DEAR FRIENDS, Recently ,HIGH COURT OF KERALA, rendered judgement returning all properties which were seized by the Police at Puthencruz Station on the basis of
    Message 1 of 1 , Jan 9, 2010
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      DEAR FRIENDS,

      Recently ,HIGH COURT OF KERALA, rendered judgement returning all properties which were seized by the Police at Puthencruz Station on the basis of a wrong complaint by the Orthodox Faction. It was complained that the church trustees and others have stolen the articles in daily use by the Orthodox group in the church. Accordingly, Criminal Case was initiated and all the articles were seized by Police. Even a bottle containing HOLY MOORONE went to the police station, in 2004,

      After enquiry spreading for one and half years, the Police reported that they have registered the case under a mistake and said that they are not able to identify an accused. Accordingly, the case was closed,

      Applications were filed by both groups to get possession of the properties seized.The Magistrate Court, Kolencherry, directed that the seized articles be returned to the Orthodox Church. Appeals were filed in the District Court. The District dismmissed applications filed by both groups with the result that the articles continued to remain in the police station,

      Both the groups preferred REVISION PETITIONS in the HIGH COURT OF KERALA. The judgement of HIGH COURT now has directed that the properties be handed over to the trustee in management of the church, viz; Mr PAULOSE, who belong to the Patriarch Section. I am enclosing the judgement for your information.

      REGARDS,
      CHE; ADV; PHILIP P J
      MEMBER ID-1837

      =====================================================================

      IN THE HIGH COURT OF KERALA AT ERNAKULAM
      Crl.Rev.Pet.No. 542 of 2008()
      1. PAULOSE, SON OF OUSEPH,
      ... Petitioner
      Vs
      1. ST. MARY'S ORTHODOX CHURCH,
      ... Respondent
      2. P.C. THOMAS, SON OF CHACKO,
      3. STATE OF KERALA,
      4. S.I. OF POLICE,

      For Petitioner :SRI.P.J.PHILIP
      For Respondent :PUBLIC PROSECUTOR AND S. SREEKUMAR
      The Hon'ble MR. Justice P.S.GOPINATHAN
      Dated :09/12/2009

      O R D E R "CR"
      P.S.GOPINATHAN,J.
      ==========================
      Crl.R.P.Nos.4554 of 2007 & 542 of 2008
      ==========================
      Dated this the 9th day of December, 2009

      ORDER

      The subject matter of these revision petitions are certain articles belonging to St.Mary's Orthodox Church, Vadavukod.

      Upon a complaint filed on behalf of the church, a case as Crime No.399 of 2003 for theft of these articles was registered and during the course of investigation, these articles were seized by the Station House Officer, Puthencruz Police Station. Later, a report was filed by the Station House Officer to the effect that there occurred no theft and petition alleging theft is the outcome of a dispute between the two factions of the church. The report submitted by theStation House Officer was accepted by the Judicial Magistrate of the First Class, Kolencherry under whose jurisdiction the church situates. Thereupon, the revision petitioner in Crl.R.P.No.542 of 2007, hereinafter referred to as "claimant", filed a petition as C.M.P.No.8100 of 2005, seeking an order under Section 452 of the Code of Criminal Procedure to release the articles to his custody stating that these articles were seized from his custody and he is entitled to get back.

      Crl.R.P.4554/2007 & 542/2008

      2. The revision petitioners in Crl.R.P.No.4554 of 2007, hereinafter referred to as "counter claimants", filed another petition as C.M.P.No.8558 of 2005 seeking an order to release those articles to them. The learned magistrate conducted a joint enquiry wherein the claimant was examined as PW.1. Exts.P1 to P4 were marked on his side.

      On the side of the counter claimants, no oral evidence was let in. Whereas eight documents were marked as Exts.P1 to P8. The learned magistrate, after evaluating the evidence, while dismissing C.M.P.8100/05 and allowing the other petition ordered to release the articles to the counter claimants. Aggrieved by the said orders, the claimant preferred Criminal Appeal Nos.511 of 2006 and 513 of 2006 before the Sessions Judge, Ernakulam.

      The First Additional Sessions Judge,Ernakulam, to whom the appeals were made over, by judgment dated 28.8.2007, while allowing rl.Appeal.513/06 dismissed C.M.P.8558/05. Confirming the order ismissing C.M.P.8100/05, other appeal was dismissed.

      As a result, the articles shall continue to be in court custody. Now these revision petitions.

      3. It is the admitted case of the parties that the articles in dispute were seized by the police as if they are the subject Crl.R.P.4554/2007 & 542/2008 matter of theft. After investigation, it was found that there is no theft.

      Accordingly, the report was filed by the Investigating Officer. It is not much disputed by the counter claimants that these articles were seized from the custody of the claimant. Regarding that, the claimant as PW1 had given evidence. Exts.P1 to P4 were also marked on his side. The contention that was advanced by the learned counsel for the counter claimants is that some of the articles belong to the church and the remaining articles are the personal assets of the vicar and the counter claimants are entitled to get it back. The counter claimants had not adduced any oral evidence but produced certain documents.

      Having due regard to the fact that the articles in dispute being not the subject matter of theft, I find that it is not necessary to enquire or arrive at a finding regarding the ownership of the properties. It is quite appropriate to restore possession to the person from whom it was seized. Since it is revealed that the articles were seized by the police from the possession of the claimant and being not the subject matter of the crime, the order of the trial court in releasing the articles to the counter claimants is not at all sustainable. The appellate court was right in allowing Crl.Appeal.513/2006.

      Crl.R.P.4554/2007 & 542/2008

      4. The Appellate Court while rejecting the petitions, had given reliance to the dictum laid down in Thamanna Shivalingappa Teli v. State of Karnataka (2005 (12) SCC

      171). In that case, the dispute was regarding the gold articles marked as Mos 1 to 5 which were seized during the course of investigation as stolen articles. The accused were found guilty for offence under sections 457 and 380 of the Indian Penal Code.

      Accordingly, they were convicted and sentenced. The accused from whom those articles were seized did not advance a claim.

      As regards the ownership of the property, the complainant as well as PW3 advanced claim.

      In that circumstance, it was ordered that the parties should establish their title before the competent civil court to get the property.

      In this case, as mentioned above, the properties are not at all the subject matter of theft or other crime. *So, it would be appropriate to restore those articles to the possession of the person from whom the* *articles were seized.* The appellate court was wrong in applying the ratio of the decision cited supra. *The appellate court ought to have found that the articles in dispute were seized from the possession of the claimant on a wrong notion that the articles are the subject matter of theft and when it is revealed that there was Crl.R.P.4554/2007 & 542/2008 no theft, it would be appropriate to restore those articles to the person from whom the articles were seized.* *It is not disputed that the claimant was a trustee of the church and was entitled to * *possess the articles*. The dispute arose only because of the fight between two factions of the church. In the above circumstance, it is not at all justified to thrust a civil dispute on a petition under Section 452 of the Code of Criminal Procedure when the articles claimed are not at all subject matter of a crime. So long as the articles are not the subject matter of a crime, it is not at all justified to hand over those articles to a person other than from whom the articles were seized on a wrong notion. It is equally not justified to retain those articles in criminal court till the party obtains a decree from a civil court, especially when it is revealed that the person claiming is not a stranger. The order of the appellate court dismissing Crl. Appeal No.511/06 is not sustainable. It is just and appropriate to return those articles to the claimant. To safeguard the interest of the counter claimants, if any, necessary conditions can be imposed.

      5. In the result, the Crl.R.P.4554/2007 is dismissed.

      While allowing Crl.R.P.542/2008, the order dismissing C.M.P.No.8100/05 would stand reversed and there would be an Crl.R.P.4554/2007 & 542/2008

      6. order to release the articles in dispute to the claimant who is the revision petitioner in Crl.R.P.542/2008, on he executing a bond for Rs,1,00,000/-(Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the trial court for a period of three years or till R.F.A.No.31/2000 is disposed of, whichever event occurs first. It is clarified that this order would not confer any fresh title to the claimant. His possession would be subject to the result of the suit, O.S.No.95/1977, against the decree of which R.F.A.31/2000 is pending before this Court.

      P.S.GOPINATHAN, JUDGE.

      ====================================================================
      THE DOUBTING THOMASES CAN CHECK UP THE WEB SIT www.highcourtofkerala.nic.in under judgments by giving the number of the case.

      As many as six years were taken for a small legal issue involved in this case rto be settled.

      REGARDS,
      CHEV; ADV; PHILIP P J
      MEMBER ID-1837
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