[S.451 CrPC] Interim Custody Of Elephant Can Be Given To Person Possessing Better Title, Symbolic Production Sufficient: Kerala High Court

Section 451 CrPC pertains to the power of the criminal court to order for custody and disposal of property pending trials and the provision states that the ‘Court can order as it think fits for the proper custody of the property’. 

In setting aside an order of the Judicial First-Class Magistrate Court, Karunagappally which dismissed the petitioner's plea for interim custody of the elephant, a single bench of Justice P.V.Kunhikrishnan observed:

“It is clear that the point to be decided at the stage of Section 451 Cr.P.C. is who is the best-suited person for possession of the property pending trial. If there are rival claimants, who has got the better title can be decided by the Court at the stage of Section 451 Cr.P.C. subject to the final decision to be taken under Section 452 Cr.P.C. upon the conclusion of the trial."

The Court further noted that though the elephant was not physically produced before the trial court but was symbolically produced through Mahazar for determination of its custody. It held that when there was no dispute regarding the identity of the elephant, its symbolic production would be sufficient for the Court to determine the issue of custody under Section 451 of CrPC.

The petitioner was the de facto complainant, representing the Mata Amrithanandamayi Madom.

Petitioner argued that the elephant named Raman belonged to the Madom and when it showed symptoms of musth, it was entrusted to the third respondent to look after it. He claimed that from social media and other inputs, he came to know that the elephant was being harassed by mahouts and employees of the third respondent.

Petitioner subsequently filed an FIR alleging the commission of offences under Sections 406 (punishment for criminal breach of trust) and 420 (cheating and dishonestly inducing delivery of property) of IPC and for interim custody of the elephant under Section 451 CrPC. The third respondent alleged that the elephant was gifted by the Amrithanandamayi Madom to him and produced documents.

The Court also perused documents produced by the Public Prosecutor which showed that the ownership of the elephant was with the Amrithanandamayi Madom.

Relying upon the decision in Shalima K.M. v. State of Kerala and others (2017), it analysed the powers of the Court for determining the custody of property during the pendency of inquiry or trial under Section 451 CrPC. It noted that in order to grant interim custody, the Court had to determine which person had better title amongst the claimants of the property and observed thus:

“Thus, the wording in the Code clearly lays down that while passing an order under Section 451 Cr.P.C, the court has to decide as it thinks fit for the proper custody of such property. The wording “as it thinks fit for the proper custody of such property” itself shows that, application of mind is necessary before passing the order. In other words, the court has to pass a judicial order after applying its mind for determining the person who is entitled to the proper custody of the property pending conclusion of the inquiry or trial.”

The Court also referred to Section 39(3) of the Wildlife (Protection) Act, 1972 which prohibited the transfer, sale, gift of wild animals without written permission of the Chief Wildlife Warden or authorized officer.

It considered Section 43(1) of the Act that prohibited the transfer of wild animals by way of offer for sale or by any other mode of consideration of a commercial nature. It thus held that the intent of the provisions was to prohibit commercial transactions of elephants.

Accordingly, the Court observed that the documents clearly showed that the petitioner possessed the title over the elephant and the ownership of the third respondent was disputed.

Thus, it set aside the order of the Magistrate and directed for the petitioner's case to be reconsidered.

Counsel for the petitioner: Advocates Vivek Nair P., C. Unnikrishnan (Kollam), Nidhi Balachandran, Uthara A.S, Ananda Padmanabhan, Vijaykrishnan S. Menon, Goutham Krishna U.B.

Counsel for the respondents: Senior Advocate S. Sreekumar, Advocates Martin Jose, P P.Prijith, Thomas P.Kuruvilla, Ajay Ben Jose, Manjunath Menon, Sachin Jacob Ambat, Anna Linda Eden, Harikrishnan S., R.Githesh , Public Prosecutor M.P Prasanth

Citation: 2023 LiveLaw (Ker) 690

Case title: Jayakrishna Menon v State of Kerala

Case number: CRL.MC NO. 7600 OF 2023

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