Bombay HC: Under which circumstances, order of disposal of property during pendency of criminal trial will be final order or interlocutory order?

Three types of orders under Section 457(1) can be passed in various eventualities. Occasion to pass an order for disposal of property can arise in various circumstances. It can be in a situation where the property is subject to decay or may be of such a nature that it cannot be retained in the same form or condition beyond certain time or that the retention thereof is either harmful to the public or the disposal thereof is in the public interest. The second type of orders can be in the circumstances when somebody approaches the concerned Criminal Court claiming to be entitled to possess such property. If the claimant in that regard is able to satisfy the Court about his claim regarding possession to the property, certainly the Court is empowered to pass appropriate order in that regard subject to conditions regarding production thereof in the Court whenever required. The third eventuality can also arise when the property is required to be kept in custody of somebody to enable him to produce it in the course of trial or inventory or whenever required by the Court and at the same time, the person entitled to possess such property cannot be ascertained. In such circumstances also the Court can pass appropriate order for delivery of property to a person ready and willing to produce the same as and when required by the Court and subject to conditions to be specified by the Court. {Para 6}

7. Considering the ingredient of Section 457(1) of the Code, it may appear to be the power invariably to be exercised at the interim stage and, therefore, any order passed in exercise of such power has to be an interlocutory order. Undoubtedly, the term "interlocutory" will have to be understood with reference to the expression used in that regard in Section 397 of the Code. The Sub-section (2) of Section 397 clearly debars the exercise of revisional power in case of any interlocutory order passed by the Criminal Court. Considering the same, can it be said that merely because the power under Section 457(1) can be invoked even before the disposal of inquiry or trial, every such order passed thereunder would be an interlocutory order? Can it be said that because the order to be passed under Section 457(1) would relate to delivery of property in the course of inquiry or trial, it would amount to an interlocutory order? As seen above, the exercise of power under Section 457(1) can be in three different circumstances. Will such exercise of power irrespective of the eventuality in which such power is exercised, would result in an interlocutory order?

8. As seen above, there are three eventualities visualised for exercise of power under Section 457(1), and one eventuality clearly refers to disposal of property, while the other to delivery of the property and the third one for custody. Once the property is disposed of during the pendency of the trial or before the conclusion of the trial, in our considered opinion, any order resulting in disposal of property can hardly be said to be an interlocutory order. Such an order would automatically result in final adjudication in relation to the property ordered to be disposed of. The disposal may also include destruction of the property. In case the property is destroyed, nothing further remains to be considered in relation to the property. Obviously, therefore, any such order can, by no stretch of imagination, be said to be an interlocutory order. Such an order will put an end to all the rights or interest in the property.

9. As regards the delivery of property to any person entitled for possession thereof, it will stand on the same footing as that of disposal of the property. In case of such delivery of property, it would be only after ascertaining the right of the person claiming to be entitled to have possession of such property. Obviously, therefore, the Court will have to decide the issue relating to the right to possess and accordingly deliver the property to the person who is entitled to possess the same. Being so, such an order deciding the issue regarding right to possess the property cannot be said to be an interlocutory order. For that purpose, such an order would be amenable to revisional jurisdiction under Section 397 of the Code.

10. As regards the third eventuality under Section 457 of the Code, the order in such an eventuality would be only for custody of the property during the trial, subject to condition that the same should be produced at any time required by the Court. Such an order would certainly fall within the category of interlocutory order as one cannot attach any finality to such an order since it does not decide any right to the property nor it implies any adjudication of any issue as such.

11. It is also to be clarified that while passing the order in relation to the second eventuality i.e. to say delivery of property to a person entitled to possess the same, the Court is not forbidden from imposing conditions in respect of production of such property whenever required by the Court during the trial. However, such a condition by itself would not amount to nullify the effect of adjudication in relation to the issue pertaining to right to possess the property. Being so, irrespective of any condition laid down for production of the property while delivering the property to the person entitled to possess, nevertheless the order would be amenable to the revisional jurisdiction.

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 1531 of 2006 in Case No. 685/N of 2005 in C.R. No. 264 of 2005

Decided On: 15.07.2008

D'damas Jewellery India Pvt. Ltd. and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.M.S. Khandeparkar and V.K. Tahilramani, JJ.

Author: R.M.S. Khandeparkar, J.

Citation: 2008 ALL MR (Cri) 2127, MANU/MH/0611/2008.

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Bombay HC: Order passed under sec. 451 and 457 of the Cr.P.C. being an interlocutory order in view of bar under sec. 397(2) revision against it is not maintainable

 Learned single Judge held that the order passed by the Magistrate was an order of interim nature subject to final order and it was interlocutory order which did not decide rights of the parties in any manner. The learned single Judge held that the order passed by the Magistrate did not fall in the category of intermediate order and is covered in the category of interlocutory order and, therefore, not amenable to revisional jurisdiction under Section 397, Cr.P.C. This case is akin to the case under consideration and I have no reason to take a different view of the matter. In addition, it may be pointed out that in Ghafoor Bhai v. Motiram Bongirwar MANU/MH/0320/1977 while construing Section 457, Cr.P.C. it was held that the provisions of Section 457, Cr.P.C. were sufficiently wide so as to cover the case where the Magistrate is called upon to pass an order about disposal of custody of property even during the investigation stage of the matter. This position was approved in Virendra Kumar v. Dilawar Khan (supra) and for this purpose, reference may be made to paragraphs 10, 11 and 12 of the said Judgment which read as under :-

10. This Court, in Ghafoor Bhai Nabbu Bhai Tawar v. Motiram Keshaorao Bongirwar MANU/MH/0320/1977 : 1977 Mh LJ 548, while construing the provisions of Section 457 of the Code of Criminal Procedure, held that by the words 'and such property is not produced before the Criminal Court during the inquiry or trial' used in the section, all that the Legislature intended to convey is that the property has not been produced before the Magistrate. Such non-production could be on account of (1) the absence of any inquiry or trial, or (2) though the enquiry or trial is pending, the investigation agency had not yet: produced it in the Court. The Court then held that the provisions of Section 457 of the Code were sufficiently wide so as to cover the case where the Magistrate is called upon to pass an order about disposal or custody of a property even during the investigation stage of the matter.

12. In my view, the contention raised by the learned counsel for the petitioner has merit and has to be accepted. As pointed out by Gadgil, J. in Ghafoor Bhai's case MANU/MH/0320/1977 (supra), an order may be passed under Section 457 of the Code purely at the stage of investigation or even after the charge-sheet had been filed, but before the property was actually produced before the Court during the trial. In the latter case, any order passed by the Magistrate must necessarily be an interlocutory order subject to the final orders to be passed after the trial has concluded.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Crl. Appln. No. 1249 of 1997

Decided On: 10.03.2001

Prakash Tarachand Sakhre Vs. Ashok Pundloikrao Wajge and Ors.

Hon'ble Judges/Coram:

R.K. Batta, J.

Citation: MANU/MH/1293/2001,2001 CRLJ 3024.

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Whether the court can release Gun Seized during the investigation on Supratnama during the pendency of proceeding?

Admittedly, the case has been registered for the offences under Sections 147, 148, 294(b), 307 IPC r/w Section 25 of Arms Act, after investigation, it was altered into one under Sections 147, 148, 294(b), 307 and 149 IPC, since during investigation, it revealed that the petitioner is having licence for possessing the gun. Since the petitioner is a Security Guard, he is needed for gun for his day-to-day avocation.

9. At this juncture, it is appropriate to incorporate paragraph No. 7 of the judgment in MANU/SC/1110/2002 : CDJ 2003 SC 061 [Sunderbhai Ambalal Desai v. State of Gujarat], which reads thus:

"7. In our view, the powers under Section 451 Cr.P.C., should be exercised expeditiously and judiciously. It would serve various purposes, namely:-

1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;

2. Court or the police would not be required to keep the article in safe custody.

3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further change of tampering with the articles."

10. Applying the said ratio to the case on hand, if this Court analyses the facts of the present case, it is clear that since the petitioner is having gun licence and he is a Security Guard by profession, he is entitled for interim custody of the gun.

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

Crl. O.P. (MD.) No. 17004 of 2015

Decided On: 03.09.2015

 Devendharan  Vs. State

Hon'ble Judges/Coram:

R. Mala, J.

Citation: MANU/TN/2867/2015

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Leading Supreme Court on release of seized property on Supratnama

To avoid a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.

Valuable Articles and Currency Notes

11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.

12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:--

(1) preparing detailed proper panchnama of such articles;

(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and

(3) after taking proper security.

13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.

14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed.

Vehicles

15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrate who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.

19. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.

20. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. It identity could be no the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same.

IN THE SUPREME COURT OF INDIA

Special Leave Petition (crl.) 2745 of 2002

Decided On: 01.10.2002

 Sunderbhai Ambalal Desai  Vs. State of Gujarat

Hon'ble Judges/Coram:

M.B. Shah and D.M. Dharmadhikari, JJ.

Citation: AIR 2003 SC 638,(2002) 10 SCC 283,

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Whether vehicle seized under NDPS Act can be released on Supratnama?

Even otherwise in the absence of any provision, which bars from release of any vehicle seized, there appears no reason to keep the vehicle in Police custody until the conclusion of the trial. There are various issues related with the upkeep of such articles specially a vehicle. This Court is of the view that the provision of Section 60 of the Act at all does not debar from releasing a vehicle during pendency of the trial. The provision of Section 60 of the Act and Section 451 of the Code act in different spheres. It is the matter of interim custody only. If vehicle is given to it's owner with certain conditions namely producing it whenever called to do so; not changing it's shape without prior permission of the Court; not to transfer it's ownership without prior permission of the Court, etc; the production of the vehicle may be ensured at any later stage of the trial or at the time of confiscation proceeding.

In the High Court of Uttarakhand at Nainital

(Before Ravindra Maithani, J.)

Abhijeet Kumar  v. State of Uttarakhand 

Criminal Misc. Application No. 368 of 2019

Decided on April 10, 2019,

Citation: 2019 SCC OnLine Utt 265

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Whether court should return property to person from whom it was seized without considering title of third party over said property?

We are unable to subscribe to the submission which has
been urged on behalf of the first respondent that when it makes
an order under Section 452, the court is merely required to
determine the source from which the property was seized.
Indeed, if this construction were to be placed, it would mean
that the right of a person who claims title to the property
would be subordinate to the claim of a person from whose
possession the property was seized. A claim of title to the
goods which have been seized is a relevant consideration while
passing an order under Section 452. Where there are conflicting
claims of entitlement to the property, the Magistrate may deal
with them or, where it is found that the rival claims need to
be resolved after an evidentiary trial, relegate the
conflicting claimants to prove their rights and entitlements
before a competent court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 170 OF 2009

BHARAT SANCHAR NIGAM LIMITED  Vs  SURYANARAYANAN & ANR.

Dated:December 13, 2018
Dr. Dhananjaya Y. Chandrachud, J.

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Whether court can permit sale of seized gold during pendency of criminal case?

The order of interim custody shall, however, depend on the nature of the property and the circumstances of the case. Where the Magistrate finds that the person who is given custody of the property under this Section is not taking proper care to look after it ,or is misusing it, he may pass fresh order regarding the custody of such property. It is for this reason that the order passed by the Court under Section 451 is not final, it is essentially an interlocutory in nature and hence no revision lies against such order. The Magistrate may order the property which is perishable or subject to natural decay to be disposed of by sale. He may also order any other property to be disposed of by sale if he thinks it expedient to do so in the circumstances of the case.

It must be stated that while passing an order under Section 451, the Court merely decides about the custody or disposal of the property involved in the case, but does not decide the question of title or rights of the parties over the property. The term "production before the Court" with reference to the property used in this section does not necessarily mean actual physical possession or custody by the Court. The Court may have control over the property even without its actual possession or custody.

 It is needless to mention that when the property has any evidentiary value, it is to be kept intact and the condition of non-alienation is imposed to ensure its production during the course of evidence for the purpose of marking as a material object. However, when the property has no evidentiary value, and only the value of the property is to be properly secured for passing of final order under Section 452 of the Code the necessity of keeping such property intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law. Further, the production of property which has evidentiary value during evidence is a part of fair trial.

Admittedly and undisputedly in the instant case the property i.e. the gold was seized as evidence and thus it can be returned to the owner only after final judgment.

IN THE HIGH COURT OF CALCUTTA

C.R.R. Nos. 696 and 2342 of 2014

Decided On: 03.06.2015

Appellants: Hari Om Export of Mahabirsthan 
Vs.
Respondent: The State of West Bengal

Hon'ble Judges/Coram:Shib Sadhan Sadhu, J.

Citation;2016 CRLJ1014

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Procedure to be followed by magistrate for releasing cattle on supratnama who are taken for slaughtering

 In Krushi Goseva Sangh's case (supra), this Court has observed that section 6 of the Maharashtra Animal Preservation Act imposes restrictions on slaughter of scheduled animals and offence punishable under the Act is declared as cognizable by section 10. It is further held that the animal which is the subject of crime can safely be held to be the "property" regarding which offence is committed and recourse can be taken to section 451 of the Criminal Procedure Code for seeking a direction from the Competent Court of law for the custody and disposal of the property pending trial. The order should be for preservation and protection of cows and scheduled animals and not for their slaughter or destruction. This Court further observed thus:
It is now well settled that what is directly forbidden cannot be indirectly permitted. The observations and guidelines of High Court in W.P. No. 714 of 1986 decided on 12.8.1996, Ejaz Ahmed vs. State of Maharashtra should be kept in view while passing an order under section 451. If Organizations like Goseva Sangh or the Panjarapole come forward for taking responsibility of preservation and protection of cattle, then they should be preferred but before handing over the custody to any person or institution, the Court should ascertain whether they would be able to make adequate arrangements for maintenance, preservation and protection of cattle....
Equivalent Citation: 2012BomCR(Cri)469
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Application No. 121 of 2011
Decided On: 27.07.2011

 Go-Vigyan Anusandhan Kendra  Vs.  State of Maharashtra & Anr.

Hon'ble Judges/Coram:
A.P. Bhangale, J.

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Whether magistrate should pass order pertaining to custody of property while considering C Summary Report?

 In view of distinction as above, it is difficult to swallow the contention of Advocate Shri Bilolikar that earlier order dated 14.2.2002 was an order under Section 457 of CrPC and therefore, the impugned order amounts to review and is illegal. Such an arguments is required to be rejected as devoid of any merits. On the contrary, earlier order being order under Section 451 of CrPC the Magistrate is obliged to suo motu pass the final orders pertaining to custody of the property when he may consider "C" summary for conclusion of the enquiry and investigation. In fact, even the impugned order is an order under Section 451 of CrPC because even in this order, the Magistrate has expected respondent No.1 to execute a bond and also undertaking to produce the vehicle before the Court if required. The final order would follow under section 452 of CrPC on conclusion of trial but in the present case, on conclusion of findings of the learned Magistrate on the report submitted by police for "C" summary.

Bombay High Court

Noorkhan S/O Jafarkhan vs Sk. Jakeer Sk. Akbar on 15 January, 2003

Equivalent citations: 2003 (2) ALD Cri 65, 2003 BomCR Cri

Bench: N Dabholkar

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Madhya Pradesh HC: Magistrate has no jurisdiction to release vehicle on supratnama which is seized for default of payment of motor vehicle tax

Jurisdiction cannot be assumed where none existed. No one then can say that it is there. Intention of statute is to secure payment of tax.

26. What thus, emerges can be summed up as under :-

(a) Taxation Authority or any officer authorised by state Government in this behalf can seize and detain a motor vehicle on "reason to believe" that there is fault or default in payment of amount of tax Under Section 16(3) of Adhiniyam. Even authorised officer, be it a Police Officer, has to operate under Adhiniyam and not Code.

Applicability of certain provisions of the Code for search or seizure is a matter of manner and procedure and does not render Section 451/457 of the Code operative in such cases.

(b) Application for release of the vehicle when seized and detained, lies to aforesaid authority and such authority is empowered to release on satisfaction that no tax is due in terms of Section 16(4) of the Adhiniyam. The "Object of Tax" is not liable to be frustrated.

(c) Aggrieved person can file an appeal Under Section 20 of the Adhiniyam on deposit of amount in question.

(d) Except Sections 451 and 457 of the Code, no other provision is shown to exist for the purpose. But Section 451 of the Code gets attracted only "when property is produced before any Criminal Court during any inquiry or trial" and is concerned with "proper custody of such property pending conclusion of the inquiry or trial". Section 457 of the Code comes into play when seizure is by a Police Officer who reports to a Magistrate under the Code. It empowers the Magistrate to make an order respecting disposal or delivery "to the person entitled to the possession thereof". On seizure Under Section 16(3), Section 451 is inapplicable till stage of inquiry or trial in a Criminal Court and Section 457 of the Code cannot be invoked unless seizure is by a police officer and is reported under the Code and some one is "entitled". Person in arrear and in error is not prima facie "entitled." These two Sections, thus, do not apply till requisite conditions are shown to be satisfied. At the infant stage, recourse to Criminal Court is impermissible. Hence, only Section 16(4) and Section 20 of Adhiniyam held to be efficacious are applicable. This power cannot be usurped by any Criminal Court.

(e) "Statutory Forums" have to be approached. Resort to Section 451 or 457 of the Code is thus, impermissible. The Criminal Court thus, does not possess jurisdiction to entertain prayer for interim release of the vehicle and grant relief under the Code. Section 19 or Rules do not indicate existence of jurisdiction of Criminal Court in case of action Under Section 16(3) of the Adhiniyam.

27. Despite Section 16(4) and 20 of Adhiniyam, the Non-applicant resorted to Forum under the Code and the Criminal Court held the prayer irrecusable and granted relief of release of the vehicle under umbrella of Brahmanand's case (supra). The non-applicant, thus, shaped the case under the Code on assumption that "jurisdiction was there" on the pattern assumed by the great British explorer, George Mallory. Once he was asked as to why did he want to climb Mount Everest? To that question he had replied "Because it is there". Now we resolve the conflict and conclude that "Criminal Court has no jurisdiction in the light of Section 16(4) and 20 of the Adhiniyam for interim release of motor vehicle seized and detained by the specified authority Under Section 16(3) on Supratnama and/or surety as was done in this case". SEIZURE IS FOR TAX.

Madhya Pradesh High Court

State Of M.P. vs Rakesh Kumar Gupta on 21 April, 1998

Equivalent citations: 1998 (2) MPLJ 249

Author: A Tiwari

Bench: R Shukla, A Tiwari, N Jain

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