Understanding the Distinction Between Seized Property and Bail Security in Criminal Cases: Legal Implications for Interim Custody Applications

 In criminal proceedings, disputes regarding property custody often arise, leading to applications for interim custody under the criminal procedure laws, primarily Sections 451 and 457 of the Code of Criminal Procedure, 1973 (Cr.P.C.). A crucial factor that influences the outcome of such applications is whether the property in question is seized property or property deposited as bail security. This article explores the key distinctions between these two categories of property and their respective treatment under the law.

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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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Whether the court can permit test identification parade of seized property after it was released on Supratnama?

 It has been submitted that briefly the allegations are that the Contractor/consigners-Jai Mata Di Logistics Pvt. Ltd. was carrying the gold, diamond and silver articles and a robbery was conducted. During the course of the investigations, recovery was effected. Pursuant to the recovery been effected an application was moved by Sh. Sunil Kumar, Proprietor of Jai Mata Di Logistics Pvt. Ltd for release of the articles. The State gave its no objections on the basis of which learned ACMM-01 vide order dated 13th September, 2022 ordered for release of the articles subject to certain conditions as contained in order dated 13th September, 2022. {Para 3}

4. On 30th September, 2022, the State moved an application for conducting TIP of the case property. This application was rejected by the learned MM inter alia on the ground that once the articles have been ordered to be released to the person who was in lawful custody of the articles, there is no reason whatsoever for identification of the articles.

11. The judicial TIPs are conducted under Section 9 of the Indian Evidence Act, 1872. It is a settled proposition that the TIP is not a substantive piece of evidence and it is only a relevant fact which is taken into the account during the appreciation of the evidence.

12. This Court is of the considered opinion that investigating agency, unless found to have committed some illegality should be given a free hand for the purpose of conducting the investigation. Investigating officers or their supervisory officers are expected to take the best decision for the purpose of ensuring that the guilty persons are brought to the book and justice is dispensed to the complainant.

13. Perusal of the order of the learned MM dated 30th September, 2022 indicates that even learned MM was of the view that the application for TIP should have been moved earlier. This might have been a slip on the part of the IO but for this the right of the investigating officer to get the TIP conducted cannot be taken away.

14. Thus, I consider that the order of the learned MM and learned ASJ denying the right to conduct the TIP is not in accordance with law. Hence, the order dated 30th September, 2022, 21st November, 2022 and 26th November, 2022 are bound to be set aside, however the order dated 13th September, 2022 is to be given effect immediately without any further delay.

 IN THE HIGH COURT OF DELHI

Crl. M.C. No. 6494/2022 and CM Appl. 25282/2022

Decided On: 02.12.2022

State (NCT of Delhi)  Vs.  Sunil Kumar

Hon'ble Judges/Coram:

Dinesh Kumar Sharma, J.

Citation: MANU/DE/4940/2022

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Whether forest officials are liable to pay damages if seized property was damaged due to their negligence?

 In the present case, the plaintiff seeks damages on the count that on account of the negligence on the part of the defendants the teakwood to which he was entitled has been damaged/decayed. It cannot be disputed that after the forest-produce was seized by the Authorities in the year 1991, it was the responsibility as well as the liability of the defendant No. 3 to take care of the same. On account of the said teakwood being kept in the open for more than seven years, it got decayed as it was in contact with nature. The material on record is, thus, sufficient to come to the conclusion that the defendants were negligent in taking care of the forest-produce when it was within their custody pursuant to the seizure. In the light of provisions of Section 43 of the said Act, it is held that the defendants would be liable for damages on account of the loss caused due to their negligent act in taking care of the seized teakwood.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 400 of 2004

Decided On: 22.03.2018

 Chintaman Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2018(4) MHLJ 719

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Whether magistrate can release vehicle seized under essential commodities Act on supratnama?

It will be apposite to refer to the Judgment of the Apex

  Court in State of West Bengal & Others v. Sujit

  Kumar Rana 2004 KHC 942, at this juncture. In the

  said case in para materia provisions in the Forest Act,

  1927 were considered by the Apex Court and in paragraph

  31 of the said judgment it was held as follows:


          "31. The said authority before passing a final order

          in terms of S.59-A (3) of the Act is required to issue

          notice and give opportunity of hearing to the parties

          concerned.     Unless such a notice is issued, the

          confiscation proceedings cannot be said to have

          started. Once, however, a confiscation proceeding

          is initiated; in terms of S.59-G of the Act, the

          jurisdiction of the criminal court in this behalf stands

          excluded. The criminal court although indisputably

          has the jurisdiction to deal with the property which

          is the subject matter of offence in terms of the

          provisions of the Code of Criminal Procedure but

          once a confiscation proceedings is initiated, the said

          power cannot be exercised by the Magistrate.

          ( emphasis supplied)

  
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                MR. JUSTICE RAJA VIJAYARAGHAVAN V

                FRIDAY, THE 15TH DAYOF JULY 2016

                                          Crl.MC.No. 3415 of 2016
                                       

                     BIJU SEBASTIAN,   Vs   STATE OF KERALA,
                    

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Whether court can rely on recovery evidence even if seized property was not sealed?

 In our considered opinion, this entire evidence is more than
sufficient to prove the involvement of the Accused in the commission of
the offence. However, according to learned counsel for the Accused, the
recovery evidence, in the instant case, is not convincing and reliable as
none of the witnesses have stated that the articles like the gold ornaments
seized from possession of the Accused or at their instance were sealed.
Moreover, even if they were sealed at the time of recovery, as the
evidence of PW-1 Chetan proves that he was shown those ornaments and
articles for the purpose of identification, and there is no evidence to prove

that subsequent thereto, they were again sealed. To substantiate his
submission, the learned counsel for the Accused has relied upon the two
authorities that of Tulshiram Bhanudas Kambale & Ors. Vs. State of
Maharashtra, 2000 CRI.L.J. 1566, and Amarjit Singh alias Babbu Vs.
State of Punjab, 1995 Supp. (3) SCC 217.
39. In our considered opinion, however, none of these authorities can
be made applicable to the facts of the present case, because, in the first
authority, issue was relating to human blood found on the recovered
articles, whereas, in the second authority the revolver found on the spot
was not sealed, hence it was held that the possibility of tampering could
not be ruled out. In the instant case, the articles seized are the gold
ornaments. Therefore, there was neither the possibility of tampering nor
that of the ornaments changing their character or colour in any way, even if they were not sealed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.441 OF 2005

Futarmal Kapurji Borana   V  The State of Maharashtra 

CORAM : SMT. V.K. TAHILRAMANI, ACTING C.J. &
DR. SHALINI PHANSALKAR-JOSHI, J.

PRONOUNCED ON : 17TH DECEMBER, 2015
Citation; 2016 ALLMR(CRI)901

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When vehicle seized in forest offence should not be released on supratnama?

 In that view of the matter, merely because the petitioner had made certain representations to the respondent-authorities for release of his vehicle whereby he has accepted his guilt and just because the petitioner has further clarified that the alleged commission of offence in question by his driver was because of the bona fide act of his driver, does not confer any right in him much less under the provisions of Indian Forest Act to claim release of vehicle immediately unless the inquiry as was proposed and conducted in the matter is completed. We are fortified in our view in light of the law laid down by the Hon'ble Apex Court in the case of State of Karnataka v. K. Krishnan, reported in MANU/SC/0512/2000 : AIR 2000 SC 2729. The Hon'ble Apex Court while dealing with the similar case, in paragraphs '7' and '8' observed thus:

7. Learned counsel appearing for the appellant-State has submitted and we agree that the provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorised Officer or the Appellate Authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, catties, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother-earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and then-produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a Court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come.

Citation: 2014(4)FLT821, 2014(5)MhLj286,2016 CRLJ(NOC)76 BOM

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 3805 of 2002

Decided On: 02.04.2014

 Sanjay Namdeorao  Suryawanshi   Vs.  State of Maharashtra

Hon'ble Judges/Coram:S.V. Gangapurwala and N.W. Sambre, JJ.

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Bombay HC: Conditions which can be imposed while releasing seized vehicle on supratnama

Therefore, this application can be allowed by modifying the condition Nos. (i), (ii) and (iii) in the impugned order dated 17/6/2014. Insofar as the contention regarding imposing of additional condition is concerned, I do not think that same is necessary as the applicant is a well established finance company which is furnishing an undertaking as well as an indemnity bond, which, therefore, are to be seen to be as good as a Bank guarantee. In the result, the application is allowed and the condition Nos. (i), (ii) and (iii) of the order dated 17/6/2014 are hereby deleted and substituted by the following conditions.:

I. The photographs of the seized vehicles taken by the Investigating Officer shall be used as secondary evidence during the trial and, therefore, physical production of the vehicles is dispensed with.

II. The applicant is permitted to sell the vehicles by auction. Before auctioning off the vehicles the applicant shall get the vehicles valued by recognized Government Valuer and the Valuation Report shall be submitted to the trial Court. The details of the auction and auction proceedings shall be submitted to the trial Court.

III. The applicant shall submit an indemnity bond, stating therein, that the applicant shall remit the proceeds from the sale of the vehicles conducted through auction by the applicant to such party as may be directed by the Court. The applicant shall also submit an undertaking within two weeks from the date of the order to the effect that in the event the ownership of vehicles is found to be vested with the accused persons, the sale proceeds of the vehicles shall be deposited by it in the trial Court or shall be paid by it in terms of the order to be passed in that regard by the trial Court.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application (Apl.) No. 431 of 2014

Decided On: 06.01.2015

 Shriram Transport Finance Co.Ltd.
Vs.
Respondent: The State of Maharashtra and Ors.

Hon'ble Judges/Coram:S.B. Shukre, J.

 Citation: 2015ALLMR(Cri)2257

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Whether criminal court can release vehicle on supratnama seized under mines Act?

A. Mines and Minerals (Development and Regulation) Act, 1957 - Section 21(4)--District Collector has no power to pass orders regarding custody or confiscation of property seized under S. 21(4). Any order regarding property seized under S. 21(4), including confiscation orders, will have to be passed by the Court having jurisdiction.

B. Criminal Procedure Code, 1973 - Section 457--Orders passed under S. 457 Cr.P.C. to manage the particular situation will not stand in the way of passing appropriate final orders.

 Any way, when the property continues in the custody of police without legal action, some orders will have to be passed regarding custody of the property. When there is actually a complaint brought under Section 22 of the Act, the question of interim custody will have to be first decided by the learned Magistrate having jurisdiction. This Court cannot interfere at that stage. But here, there is admittedly no prosecution, and it is submitted that the police has only been thinking of filing a prosecution in the appropriate court. This Court cannot wait indefinitely. It is not known when the police will bring prosecution. The person having right to possess the vehicle, as registered owner or otherwise, will have to be given custody, subject to orders to be passed by the competent court, in case prosecution is brought. If the police does not think of bringing a prosecution, the orders passed regarding custody of property will have force as a final order. However, if prosecution is brought by the police under Section 22 of the Act, final orders will have to be passed by the competent court. Orders passed under Section 457 Cr.P.C. to manage the particular situation will not stand in the way of passing appropriate final orders. In case such a prosecution proceeds and a decision comes on full trial, the court can pass orders under Section 21(4A) of the Act, or under Section 452 Cr.P.C. Even in a case where the offence is compounded pending prosecution, the court trying the offence can pass orders regarding property under Section 452 Cr.P.C. when Section 23A(2) provides that no proceeding or further proceeding shall be taken against the offender in respect of offence so compounded.

8. In the above factual situation where some orders are found necessary by this Court, I find that the property can be released to the petitioner on strict conditions, of course subject to final orders to be passed by the competent court in case prosecution is brought under the Act. The police or the parties cannot wait in vain, when the authority before whom report is made has no authority to act and pass orders. It is in such a situation, orders are felt necessary in the interest of justice, by this Court.

IN THE HIGH COURT OF KERALA

Crl. R.P. No. 1487 of 2014

Decided On: 02.09.2014

Appellants: Anfar
Vs.
Respondent: State of Kerala

Hon'ble Judges/Coram:P. Ubaid, J.

Citation: 2015CriLJ103, 2014 (4) KHC 210, 2014(4)KLJ27,2015(1) crimes279 kerala

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Landmark judgment of Delhi high court for releasing seized property on supratnama

 Whenever a property is seized by the police, it is the duty of the seizing officer/SHO to produce it before the concerned Magistrate within one week of the seizure and the Court, after due notice to the concerned parties, is required to pass an appropriate order for its disposal within a period of one month. Valuable articles

59. The valuable articles seized by the police may be released to the person, who, in the opinion of the Court, is lawfully entitled to claim such as the complainant at whose house theft, robbery or dacoity has taken place, after preparing detailed panchnama of such articles; taking photographs of such articles and a security bond.

60. The photographs of such articles should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Wherever necessary, the Court may get the jewellery articles valued from a government approved valuer.

61. The actual production of the valuable articles during the trial should not be insisted upon and the photographs along with the panchnama should suffice for the purposes of evidence.

62. Where such articles are not handed over either to the complainant or to the person from whom such articles were seized or to its claimant, then the Court may direct that such articles be kept in a locker.

63. If required, the Court may direct that such articles be handed back to the Investigating Officer for further investigation and identification. However, in no circumstance, the Investigating Officer should keep such articles in custody for a longer period for the purposes of investigation and identification.

64. If articles are required to be kept in police custody, the SHO shall, after preparing proper panchnama, keep such articles in a locker.

Currency notes

65. The currency notes seized by the police may be released to the person who, in the opinion of the Court, is lawfully entitled to claim after preparing detailed panchnama of the currency notes with their numbers or denomination; taking photographs of the currency notes; and taking a security bond.

66. The photographs of such currency notes should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over and memo of the proceedings be prepared which must be signed by the parties and witnesses.

67. The production of the currency notes during the course of the trial should not be insisted upon and the releasee should be permitted to use the currency.

Vehicles

68. Vehicles involved in an offence may be released to the rightful owner after preparing detailed panchnama; taking photographs of the vehicle; valuation report; and a security bond.

69. The photographs of the vehicle should be attested and countersigned by the complainant, accused as well as by the person to whom the custody is handed over.

70. The production of the vehicle should not be insisted upon during the trial. The panchnama and photographs along with the valuation report should suffice for the purposes of evidence.

71. Return of vehicles and permission for sale thereof should be the general norm rather than the exception.

72. If the vehicle is insured, the Court shall issue notice to the owner and the insurance company for disposal of the vehicle. If there is no response or the owner declines to take the vehicle or informs that it has claimed insurance/released its right in the vehicle to the insurance company and the insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in auction.

73. If a vehicle is not claimed by the accused, owner, or the Insurance company or by a third person, it may be ordered to be sold by auction.

Liquor and narcotic drugs

74. Prompt action should be taken in disposing of the liquor bottles/pouches and narcotic drugs after preparing a detailed panchnama containing an inventory; retaining a sample thereof; taking photographs of the entire lot of seized bottles/pouches/narcotic drugs and security bond. The sample shall be kept properly after sending it to the chemical analyst, if required.

75. The sample along with the photographs of the case property and the panchnama would be sufficient evidence at the stage of trial.

Counterfeit Coins/Currencies

76. The counterfeit coins/currencies together with implements for their manufacture such as dyes, moulds, etc. shall be retained by the police pending trial and till the disposal of the appeal or revision, if any. On conclusion of the trial, the Court shall pass an order for its disposal by destruction or for such other action in accordance with the rules.

Arms and ammunitions

77. The arms and ammunition seized by the police shall be stored in the Malkhana during the pendency of the trial. Upon conclusion of the trial, the Court shall pass appropriate order under Section 452 Cr.P.C. for its confiscation or destruction or release. Perishable properties

78. In case of properties subject to speedy and natural decay, the Magistrate may pass an appropriate order under Section 459 Cr.P.C. for its disposal on such conditions as may be considered appropriate.

79. If the person entitled to the possession is unknown or absent or the Magistrate is of the opinion that sale would be in the benefit of the owner, the Magistrate may direct the case property to be sold.

Disposal of property at conclusion of trial

80. Upon conclusion of enquiry or trial, the Court may make an order under Section 452 Cr.P.C. for the disposal by destruction, confiscation or delivery to any person claiming to be entitled for possession thereof or otherwise.

81. For delivery of any property to any person claiming to be entitled thereto, the Court may release the property unconditionally or impose a condition of a bond with or without sureties to restore such property to the Court upon modification/setting aside of the order in appeal or revision.

82. The aforesaid order shall not be carried out for a period of two months or when an appeal is presented, until disposal of the appeal except in case of live stock or property subject to speedy and natural decay.

Unclaimed properties

83. If no person establishes his claim to case property within six months or the person in whose possession such property was found is unable to show that he legally acquired the same, the Magistrate may order sale of the property by the State Government under Section 458 Cr.P.C.

Loss/theft/destruction of the case property in police custody

84. Where the seized property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property to its owner.

85. The Court has to assess the value of the property seized by the police and the owner of the property is entitled to receive the value of the property lost from the State.

General

86. The Court may impose any other condition which may be necessary in the facts of each case.

87. The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before passing the order. The Court shall also take into consideration the objections, if any, of the accused.

88. 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 Cr. P.C., the necessity of keeping such properties intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law.

89. The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial.

Delhi High Court

Manjit Singh vs State on 10 September, 2014

Author: J.R. Midha

  

   CRL.M.C. 4485/2013 and Crl.M.A.No.16055/2013

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Whether it is permissible to seize property inherited by widow of deceased in execution of decree?

Now, it is quite clear that Mt. Kalawati did not acquire her interest as a survivor. She had acquired it under a statute and although the statute does not say expressly that she will acquire the interest of her husband as his heir, yet it seems to me that if she does not get the interest by survivorship then she must be held to have acquired it as an heir. If she got it as an heir then the interest is an asset of her husband in her hands and can be proceeded against by the creditor. This is precisely the view which has been propounded in Saradambal v. Subbarama Ayyar AIR 1942 Mad 212. In that case the plaintiff had obtained a decree for money against a member of the joint family who died sometime after the decree. His wife was then brought on the record as his legal representative. A question arose whether the interest she had acquired under Hindu Women's Bights to Property Act could be attached in the execution of the decree. Venkataramana Rao J. who decided the case, dealt with this question as follows:

Under Section 3 (2) the interest taken by the widow is the same interest as the husband himself had, that is, the interest of. an undivided member of a joint family in the joint family property. The said interest is capable of definition and so far as this presidency is concerned, it is liable to separation by partition and alienable inter vivos for valuable consideration and liable to be seized in execution of a decree for the personal debts of the member. Giving the language its plain meaning, the widow takes that interest subject to the rights and obligations attached to that interest and subject to the restrictions placed on her powers by Clause (3) of Section 3 of the Act. That clause leaves the right to partition untouched but restricts the right of alienation because the nature of the interest which she takes is a Hindu woman's interest. "What a Hindu woman's interest is, is well defined in Hindu law, that is, she is competent to alienate that interest only for purposes sanctioned by Hindu law and that interest is liable to be seized in execution of decrees for the payment of debts of the last male owner. Taking both, the clauses together, the property taken by her is liable for the debts of her husband. The contention of Mr. Vedanta Subramaniam is that as the husband died undivided and the other creditor has not taken any steps during his life-time to attach the said property, his remedy is lost. It is true that if the Act had not been passed, as the husband died without leaving a male issue the property would have gone by survivorship to his undivided brother and his brother's son and the doctrine of survivorship would prevent the creditor from attaching that property. But the Act has taken away that rule of survivorship and allowed the property to descend to his wife. Once the rule of survivorship no longer operates, there is nothing to preclude a creditor from attaching the property. Though the interest she takes is a limited interest of a Hindu woman, she is conferred the same status as that of a male owner. Even in the case of a female who takes a Hindu women's estate, the inheritance vests in her for the time being as fully as it vests in any male succeeding to the property but only with a restricted right of alienation. As pointed out by the Judicial Committee in 5 Cal. 7763 at p. 789, 'the whole estate is for the time vested in her absolutely for some purposes, though -in some respects for only a qualified interest.

Equivalent Citation: AIR1945Pat116

IN THE HIGH COURT OF PATNA

Decided On: 15.08.1944

Appellants: Siveshwar Prasad Narain Singh and Ors.
Vs.
Respondent: Lata Harnarain Mal Bahal

Fazl Ali, C.J.

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