Ismail M.K vs State

Alexander Thomas, J.—The petitioner has filed the above said Crl. M.C. with a prayer to set aside condition No. 1 in Annexure A1 order of the lower court wherein it is ordered that "the petitioner is directed to deposit an amount of Rs. 30,000/- before this court and to release the interim custody of the vehicle to the petitioner". The petitioner was the sole accused in Crime No. 470/2014 of Alakode Police Station, Kannur District, registered for the offence under Sec. 8 of the Protection of Children from Sexual Offences Act and the petitioner is on bail in that crime. He is the registered owner of the auto rickshaw bearing Registration No. KL-59F-2011. The above vehicle was seized by the Sub Inspector of Police, Alakode Police Station in connection with the above crime alleging that the vehicle was used at the time of commission of offence. The vehicle was produced before the Sessions Court, Thalassery and the petitioner had moved Crl. M.P. No. 4913/2014 before the Sessions Court, Thalassery for interim custody of the vehicle. The documents such as R.C., Insurance Certificate etc. were produced before the court below and the court below had allowed Crl. M.P. No. 4913/2014 on 1-10-2014 as per Annexure A1. As per condition No. 1, the petitioner is directed to deposit an amount of Rs. 30,000/- before the court below. It is contended that the said condition No. 1 is very harsh and that if the condition is not lifted, irreparable loss and hardship will be caused to the petitioner. The petitioner is ready to furnish sufficient surety bond for Rs. 30,000/- also. It is in this background that the aforementioned prayer may be to set aside condition No. 1 in Annexure A1 of the lower court.

Heard Sri V.A. Satheesh, the learned counsel for the petitioner and the learned Public Prosecutor appearing for the respondent.

The petitioner is involved in the aforementioned offence under the Protection of Children from Sexual Offences Act, it is true that the vehicle in question is needed mainly as a material object (MO) and the proceedings before the court below are not in any way related to the confiscation of the vehicle. Therefore, the court has the discretion to vary or set aside condition No. 1 regarding cash deposit. The value of the vehicle is stated to be Rs. 30,000/- and the amount directed to be deposited in cash in view of condition No. 1 is the said value of the vehicle. The petitioner's counsel would seriously urge that the petitioner is an auto rickshaw driver by profession and that it is very difficult for him to comply with the direction to deposit the cost of the vehicle. If he is not able to get release of the vehicle, it would rust and be destroyed by the time the criminal trial is completed. Certainly, there is discretion with this Court to modify the direction. The discretion must be exercised judicially and judiciously. Taking into account the allegations involved in the aforementioned crime, though the vehicle is only a material object and is not required in connection with the confiscation proceedings, the court can impose such condition in the interest of justice so as to send message of deterrence to offenders or accused of the crime. Moreover, the crime is allegedly committed against a minor girl child. Therefore, this Court is not fully impressed with the prayer that the condition No. 1 be entirely set aside. It is ordered that the petitioner shall comply with the condition Nos. 2 to 8. This Court is inclined to reduce the aforementioned cash deposit amount of Rs. 30,000/- to Rs. 15,000/-. The petitioner shall make cash deposit of the above said amount of Rs. 15,000/- in ten equal monthly instalments starting from 1-1-2015 and the same is to be paid on or before the 10th of every month concerned. The petitioner shall file an affidavit before the court below stating that he undertakes to make cash deposit of aforementioned amount of Rs. 15,000/- by paying the same in ten equal monthly instalments starting from 1-1-2015 to be paid on or before the 10th of every month and if he violates any of such instalment, then the benefit of this order would stand vacated. The petitioner shall also undertake in the said affidavit that he shall not question the identity of the vehicle. The condition No. 1 is modified and substituted on the above terms. On the petitioner filing the aforementioned affidavit as directed above and on this complying with conditions 2 to 8 as already ordered in Annexure A1, the interim custody of the vehicle shall then be forthwith released to the petitioner.

It is made clear that the modified directions made in this order is only to reduce cash deposit amount of Rs. 30,000/- to Rs. 15,000/- and the petitioner has to start making of such cash deposit only on 1-1-2015 to be paid in ten equal monthly instalments as indicated above and if the petitioner violates all or any of the monthly instalment, then this order will stand vacated and the petitioner will have to surrender the interim custody of the vehicle before the court below. After the conclusion of the trial, the petitioner is at liberty to seek refund of the above said amount of Rs. 15,000/-, by filing an appropriate application in this proceeding.

With these observations and directions, the Crl. M.C. stands disposed of.