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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Under which circumstances Magistrate who has no jurisdiction to try the case can release seized property U/S 457 of CRPC?

  On a reading of Section 457 Cr.P.C, we find that the said provision coverers a wide spectrum and would apply to all kinds of seizures under the Cr.P.C. On a reading of the words “and such property is not produced before a Criminal Court during an inquiry or trial” appearing in Section 457 Cr.P.C, the same does not necessarily mean that the report of the seizure of property to a Magistrate would be given to the same Magistrate who would hold an inquiry of the case under Section 2(g) of the Code and the trial of the case. The report of the seizure of property could be to a different Magistrate than the one who would conduct the inquiry or trial. The report of the seizure of property under Section 457 Cr.P.C which has not been produced at the stage of investigation, could be to a Magistrate who may not have the jurisdiction to hold the inquiry or trial on the submission of the charge-sheet in the said case. As such, we are of the view that the power conferred under Section 457 Cr.P.C cannot be given a restrictive meaning, as the power under the said provision can be exercised by a Magistrate who has no power to hold an inquiry or trial of the case, in which the seized property is involved in. {Para 43}

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Crl.Pet 284/2022

The State of Assam and Another.  Vs Ram Sankar Maurya. 

BEFORE

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MRS. JUSTICE MALASRI NANDI

Author: (M. Zothankhuma, J)

Date of judgment : 02.03.2023.

Read full Judgment here: Click here

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Can the court release seized property at the investigation stage U/S 457 of CRPC even if not produced before the court?

 The fact that the Hon’ble Supreme Court has given a direction to the learned Criminal Court to consider release of seized property/articles at the investigation stage under Section 457 Cr.P.C, shows that Section 457 Cr.P.C. can be applied by the Criminal Court at the investigation stage for release of seized

property.The submission made by the counsel for the appellant that the judgment of the Apex Court in Ram Prakash Sharma (supra) did not deliberate on the scope of Section 457 Cr.P.C, for granting custody of seized property at the stage of investigation cannot be accepted by us. While different situations and circumstances could arise in respect of seized property, one situation that can arise is when the police submit a final negative report and the police authorities fail to release custody of the seized property in terms of

Section 102 Cr.P.C. In that case, there would be no remedy for the aggrieved person, except to approach the High Court under Section 482 Cr.P.C or Article 226 of the Constitution, which would be a difficult task for people living in far flung areas and those belonging to the weaker sections of society. In that event,

Section 457 Cr.P.C would become redundant. After considering the decisions of the Apex Court and the various High Courts alongwith Section 457 Cr.P.C, we are of the considered opinion that the words “and such property is not produced before a Criminal Court during an inquiry or trial”, appearing in sub-Section (1) of Section 457 Cr.P.C, cannot be restricted to mean that the stage of inquiry or trial is a condition precedent, for a Court to have jurisdiction for exercising power under Section 457 Cr.P.C. at the investigation stage. We are of the view that the words “and such property is not produced before a Criminal Court during the inquiry or trial” appearing in Section 457(1) Cr.P.C would have to be considered to be a reference to a stage of investigation and not the stage of inquiry or trial. Further, we are bound by the decision of the Apex Court in Ram Prakash Sharma (supra) , in terms of Article 141 of the Constitution of India, as it is the mandate of the Constitution that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Also, in the case of Anil Kumar Neotia vs. Union of India & Others, reported in AIR 1988

SC 1353, it has been held that the High Court cannot question the correctness of the decision of the Supreme Court, even though the points stated before the High Court were not considered by the Supreme Court. {Para 44}

45. In view of the reasons stated above, we answer the reference by holding that at the investigation stage, seized articles cannot be released by a Court under Section 451 Cr.P.C. However, under Section 457 Cr.P.C., the Criminal Court has the jurisdiction to give custody of seized property/articles at the stage of investigation, when those seized property are not produced before the Court.

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Crl.Pet 284/2022

The State of Assam and Another.  Vs Ram Sankar Maurya. 

BEFORE

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MRS. JUSTICE MALASRI NANDI

Author: (M. Zothankhuma, J)

Date of judgment : 02.03.2023

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What conditions magistrate can impose for the release of a vehicle on supratnama seized for carrying sand?

The learned counsel for the petitioner also relied on the

ratio laid down by the Division Bench of this Court in Writ Petition

No. 7873 of 2019 dated 01st July, 2019, it is held that

“4. Considering that vehicles would be lying idle and it

will not be in anybodies interest to keep the vehicles

idle, we would allow the release of the vehicles on

following conditions :

(i) The petitioners in each of these petitions

shall deposit an amount of Rs. 1,00,000/- for

release of vehicles.

5. Upon deposit of this amount, the Authority shall

release the vehicles after identifying its legitimate owner,

after verifying the documents and on petitioners’

submitting the bond, so also after complying with all

terms and conditions put forth by the J.M.F.C. while

directing release of vehicles.

6. The deposit of Rs. 1,00,000/- each with Revenue

Authority by petitioners would be without prejudice to

the rights and contentions of either parties.”

10. In view of the above observations of the Division Bench of

this Court the condition of payment of fine amount cannot be faulted

or cannot be held as illegal, but at the same time the condition of

indemnity bond appears to be stringent, which is required to be set

aside. With this, I proceed to pass following order :

ORDER

1. The petition is partly allowed.

2. The Vehicle bearing No. MH-16-CC-9397 be

returned to its owner on a bond of Rs. 15,00,000/- (Rs.

Fifteen Lakhs).

3. The petitioner is directed to deposit Rs.

1,50,000/- (Rs. One Lakh and Fifty Thousand) towards

fine amount without prejudice to the rights and

contentions of either parties before the Revenue

Authority.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.947 OF 2021

Vikas Uttam Shinde, Vs State of Maharashtra 

CORAM : SURENDRA P.TAVADE , J.

DATE : 2nd September, 2021.

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Whether Magistrate can release of vehicle on supratnama seized U/S 207 of the Motor Vehicles Act?

 The Counsel for the petitioner, however, relied on the decision of the single Judge of the Allahabad High Court in the case of Ram Sewak Jaiswal vs. State of U.P., 1996 Cri.LJ 1012. In that case, the Court opined that the Magistrate does not have power to release the vehicle under the Code of Criminal Procedure. We disagree with the said opinion. Inasmuch as, once the matter proceeds before the regular criminal Court as a criminal case and the vehicle is shown as property involved in the said criminal case, it is only the Magistrate who takes cognizance of the case, competent to issue directions regarding return of property till 

the said criminal case is finally disposed of and none else.

7. No doubt, Section 207 of the Motor Vehicles Act are special provisions but even so, a police officer or the person authorized by the State Government under the said enactment shall cease to exercise powers under section 207 of the Motor Vehicles Act qua the vehicle which is subject matter of criminal case of which cognizance is taken by the Court, consequent to the registration of offence and making the said vehicle as a crime property.

Bombay High Court

Shri Balu @ Dinkar Baburao Tambe vs State Of Maharashtra on 8 October, 2012

Bench: A.M. Khanwilkar, R.Y. Ganoo

citation; 2012(1) MH L J 86

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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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