By Y.Srinivasa Rao, Principal Assistant Sessions Judge, Tirupati.
Introduction:- Chapter 34 of the Criminal Procedure Code, 1973 explains the provisions relating to CASE PROPERTY under Sections 451 to 459. Besides these provisions, the Criminal Rules of Practice and Circular Orders provides Rules 220 to 234. The power conferred under sections 41(d), 47, 51,93, 74,100,101,102 153, 165 of Code of Criminal Procedure,1973, the police officer can seize or recover property. Besides theses, investigation officer can seizure or recover property under various provisions of many special Acts such as NDPS, prevention of Food Adultaration Act, Andhra Pradesh Gaming Act, Drugs and Cosmetics Act,1940 etc.,
The Hon’ble Apex Court, Sunderbha1 Ambalal Desai vs State Of Gujarat, 2002 Supp(3) SCR 39 = (2002) 10 SCC 283, succinctly explained the object and scheme of the various provisions of the Code as to disposal of case property. The Hon’ble Supreme Court, in the above case, observed as follows:
‘’The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary.’’
In view of the ratio-laid down by the Hon’ble Apex Court, it is clear that unless the case-property is absolutely necessary, court cannot retain the case property either in the custody of court or in the custody of police for any time longer. Therefore, it is the duty of court to pass appropriate property orders according to law without any delay.
CHAPTER – XXXIV OF CR.P.C:-
- Section 451:- (i) When any property is produced before any Criminal Court during any inquiry or trial, the Court may order such property for proper custody, pending the conclusion of the inquiry or trial. (ii). If the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
2002 Supp(3) SCR 39 = (2002) 10 SCC 283.
Sunderbha1 Ambalal Desai vs State Of Gujarat.
”The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary.”
2. Section 452:- (i). Order under this section should be passed at conclusion of trial. (ii). The Court may make such order (with or without any condition) for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to. (iii). But, the Court hs to make such order engaging that person to restore such property to the Court if the order made under sub- section (1) is modified or set aside on appeal or revision. However, if property is livestock or is subject to speedy and natural decay, this condition to wait until lapse of appeal time does not arise. (iv). While passing order under this section, ‘’APPEAL TIME’ is to be kept in mind. (v). Under this section, a Court of Session may direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459. 6. This section also applies to the such property which had been given for interim safe custody pendeti lite.
3. Section 453 :– (i). This section applies to Payment to innocent purchaser of money found on accused.
(It applies to cases such as theft, and reciving or retaining stolen property). (ii).Under this section, on application, the Court can order to make payment to innocent purchaser out of money found on accused. (iii). If no money is found on accused, the court cannot order accused who is convicted or the owner to make payment of purchase money to the innocent purchaser. Of course, the innocent purchaser may approach civil court for such claim.
4. Section 454 :- Appeal against order passed u/Sec. 452 or sec.453 of Cr.P.C
5. Section 455:- (i). Under this section, the Court has to order destruction of libellous and other matter.
(ii). When an accused is convicted for offences under sections 292, section 293, section 501 or section 502 IPC, the Court may order the destruction of all the copies of the thing. 3.In like manner, on conviction of offences u/Secs. 272 to 275 IPC, The Court may order the food, drink drug or medical preparation in respect of which the conviction was had, to be destroyed. See:- Veerabhadra Vs. State, AIR 1940 Mad. 953
6. Section 456:- (i). It provides procedure as to Power to restore possession of immovable property. (ii). This section deals with immopvable property whereas section 451 to 455 deal with movable property. (iii). The jurisdiction of criminal court under this section is quasi civil in nature. (iv). If a criminal court passes an order under this provision, the aggrieved party can also approach civil court to set aside such order.
- Section 457 :- (i). When case property is reported to Magistrate by police, this section applies. (ii). Under this section, during an inquiry or trial, the Magistrate may order disposal of such property or the delivery of such property to the person entitled to.
8. Section 458:- (i). This section provides procedure for disposal of property when no claimant appears within six months. (ii). If the claimant fails to prove his ownership over the property, the Court has to draw presumption under section 110 of IEA. (iii). Under this section, when proclamation issued under section 457 of Cr.p.c and 6 months have been expired, Magistrate may order that such property shall be at the disposal of the State Government and may be sold by that Government and the proceeds of such sale shall be remitted to the State. (iv). Appeal lies against such order. See. Section 110 of Indian Evidence Act,1872. Burden of proof as to ownership.—When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
- Section 459 :- Magistrate has power to sell perishable property under this provision
PROPERTY SEIZED UNDER SECTION 41 R/W 102 OF CR.P.C:-
When police seized any property under section 41 r/w section 102 of Cr.P.C and produced before the court, such property should be recived by the court. If there is no complaint/report by any person , police will file final report. The Presiding officer shall verify final report to know what steps had been taken police as to such property. When it is satisfied that there is no complaint had been registered in any police station, such final report can be accepted and the Magistrate can take steps for disposal of such unclaimed property as per procedure contemplated under sections 458 and 459 of the Code of Criminal Procedure,1973.
If any crime had been registered as to such property seized under section 41 and section 102 of Cr.P.C, the property should be transfereed to the court concerned
Currency Notes and Coins:- Money should not be freezed anywhere and in the interest of economoy of the State, the cash should be deposited by way FDR in any Nationalized Bank. Guidelines given in Sundarbhai Ambalal Desai’s case (2002) 10 SCC 283 should be followed.
Perishable Items:- Where perishable itmes such as food products, agricultural produce etc , which are speedy and natural decay, are produced, such property should be given to the person to whom such peoperty belongs to. If such peoperty is unclaimed, the property may be sold in public auction. The sale proceeds should be deposited in Criminal Court Deposits. Such transaction should be entered in property Register. After final disposal of the case, the sale proceeds of unclaimed property should be confiscated to the State.
Livestock: Cows, goats, sheep, birds etc are called livestock. Where livestock is seized, the descrptiveparticlurs of such livestock such as colour, breed, age, and other identification marks should be noted and such property can be returned to its owner for interim safe custody. The Court can direct the person to whom the livestock isgiven for safecustody to file periodical report about the condition of the livestock. When no person claims livestock, it can be given to ‘’Govu sadan’ in case of cattle or to the place where the livestock is being protected and if no persons claims the livestock, the same may be sold by way of public auction and deposit the sale proceeds in Crimianl Court Deposits. After final disposal of the case, the sale proceeds of unclaimed property should be confiscated to the State.
Explosive devices/Bombs:- Bombs should not be produced before court. Sooner after the seizure any bombs / explosive devices, the police should take precautions for safe handling and report the same to the Court. And that the police has to take steps to inform the same to Bomb Diffusal Squad/Team for necessary instructions for sending the explosive items for analysis. The court may pass appropriate orders which are essential for safe handling of explosive items and to send them to Forensic analysis and thereafter for its disposal with help Bomb diffusal team.
Gold and Silver Items:- Where Gold and Silver items are produced before the Court by police, they should be certified and weighed at the authorized Dharma kata and shall obtain a certificate to that effect. The magistrate shall out his initial and date on such certificate issued by Goldsmith and on the Dharma kata slip. If there is any difference of weight is found to the entries made in the list of property and the Certificate issued by the Goldsmith, both should be noted in the Property register.
Property in Sessions Cases:- 1. The case property of Sessions Case should be submitted to the Sessions Court with securely sealed. 2. The Magistrate can order interim safe custody of such property before committing the case to the Sessions Court. 3. Where the case property is given for interim safe custody, notice should be issued to that person to whom the property was given for interin safe custody, to produce the said property.; and then after receiving the case property, it should be properly sealed and it should be submitted to the Sessions court.
Disposal of case property after lapse (expiry) of appeal time:- Where the case property is still pending even after the lapse of appeal time, a notice as in Form-61 of Crl.R.P should be served to the person to whom the property belongs to. If such person fails to attend to receive the property, or the property is unclaimed, or where the owner is not traced out or where police could not find out legal heirs of such property and when no complaint is reported regarding such property, such unclaimed property is to be disposed of as per the procedure provided under sections 457, 458 and 459 of Cr.P.C.
CHAPTER XI OF CRIMINAL RULES OF PRACTICE:- In this context, besides the procedure contemplated under section 451 to 459 of Cr.P.C, it is seminal to have a look at the rules provided in Criminal Rules of Practice as to the concept of custody, submission of material objects and disposal of case properties. Why these rules are important is that ”Rules of procedure without rules of content are empty, while rules of content without rules of procedure are blind”.
CUSTODY OF CASE PROPERTY ( Rules 220 to 222 of Crl.R.P):
Personal responsibility:– 1. Presiding officers are personally responsible for the safe custody of case properties. (Rule 220). Inspection by PO and entries in register:– 1. Immediately of receipt of property, Presiding officer (PO) shall inspect the property and PO or Responsible Officer of the court shall enter the same in the property Register then itself. (Rule 221). Periodical checking by PO:- 2. PO shall check valuable and nonvaluable properties periodically and satisfy himself that all items are properly accounted for; safely kept; and order of disposal are promptly carried out. (Rule 221). Taking over the property by succeeding officer:- 1. Succeding officer shall examine all properties; certify in the registers themselves that he has taken over the properties and shall affix necessary certificate in the Register. (Rule 221). Valuable properties must be kept in strong box: Firstly, all valuable should be separated and kept in strong box with goodlock and key to protect against damage. Secondly, They should invariably be deposited in the Sub – Treasury. (Rule 221)
SUBMISSION OF MATERIAL OBJECTS (RULES 223 TO 226 of Crl.R.P)
The Sessions Judge shall in his discretion submit material objects which are of assistance to the High Court. 2. Court of Session shall enclose a list of material objects in Judicial Form No. 129-A with the case records. (Rule 223). Note to be made, if any Material Object is Retained:- such retention should form part of the record submitted to the High Court. “Other miscellaneous papers if any” with English part of the Sessions Record, the page assigned to the paper being shown against Item 6(b). (Rule 224). Return to be obtained by the lower court within one month:- Articles received from lower Courts such as sticks, stones, knives, axes, guns, rags of clothing, earth etc., and all articles of trifling value are ordinarily retained in the High Court and destroyed there. If such property which are omitted to return by High Court to lower court, an application seeking such property should be made within one month from the date of receipt of lower court record. (Rule 225). Properties in Sessions Cases may be sent to Committing Magistrates for Disposal:- The properties in Sessions Cases which have to be dealt with under Sec. 452 of the code may be forwarded to the Committing Magistrate excepting in such individual cases where the Sessions Judge directs other wise. (Rule 226)
DISPOSAL OF THE CASE PROPERTY (Rules 227 to 234 of Crl.R.P):
Judgment to contain Orders for disposed (Rule 227). Material objects exhibited at the trial of criminal cases should be retained by the Court until the Court is satisfied that the appeal time has expired and that no appeal has been presented or that any appeal presented has been disposed of. But when a case is disposed of by High Court, the material Object shall ordinarily the disposed of after the expiry of 90 days from the date of judgment of the High Court, unless in the meantime. (1) the parties interested have, on a proper application, obtained a direction from the High Court for preservation of such objects, pending disposal case in Supreme Court as referred in rule 228. After that, they may be destroyed or otherwise disposed or according to the Rules. (Rule 228).
Orders for destruction of case property should be carried out in the presence of the Presiding Officers. (Rule 229).
It is not desirable to order destruction of valuable property. It should, if it is not ordered to be delivered o the person entitled to it, be confiscated or otherwise disposed of. (Rule 229).
Final disposal of case property:-
1. Rule 230 Crl.R.P:- Weapon other than a fire arm or ammunition:
1. Weapon other than a fire arm or ammunition which unusual character or of special interest, it should be sent to medical college or Police Museum. 2. Before sending it, court shall ascertain by reference whether it is required to them or not. 3. If the article is required by both, Medical college will have priority. 4. If it is not required by the both, it should be destroyed. 5. This rule applies to Sessions cases.
- Rule 230 Crl.R.P:- Art objects and antiquity — 1. The Director of archaeology and Museums; 2. Before sending it, court shall ascertain by reference whether it is required to them or not; 3. If it is not required to them, it should be destroyed.
- Rule 230 Crl.R.P:- Gold ornaments: Mint Master through a responsible Officer by pre-arrangement
p style=”text-align: justify;”>4. Rule 234 Crl.R.P :- Counterfeit coins: They shall be forwarded together with any dies, moulds etc., which may have been produced in the case to the nearest Treasury or Sub-Treasury, with request that they may be remitted to the Mint for examination. A concise and accurate report should also be sent containing a description of the case and the sentence imposed.
p style=”text-align: justify;”>5. Rule 234 Crl.R.P:- Forged Currency: Notes It is a matter for the decision of the Court with tries the case.
–(1) deliver the same to police for destruction; or (2) If they are of special interest, police may make them over to the Criminal Investigation Department for this purpose; (3) All forged currency notes brought before the Court shall be handed over to the Police for being forwarded to the Issue Department of the Reserve Bank of India, with a brief report of the case.
- Rule 234 Crl.R.P: Arms and ammunitions: It should be sent to the nearest Arsenal for disposal.
Delivery of Case Property to the person entitled:- When any property is ordered to be delivered to a party, notice should be issued to him in Judicial Form No .61. He should also be informed that if he does not appear on the date specified in the notice, the property will either be destroyed or sold and the sale proceeds credited to Government. If the Party appears after the sale of the property, the sale proceeds may be paid to him deducting expenses of the sale. (Rule 231).
Sale of Case Property as per provisions of CPC:- Sale of property should be conducted by an officer of the Court and should be public auction. It should be conducted and confirmed as far as may be in the manner prescribed for the sale of movable property by the Code of Civil Procedure and Civil Rules of Practice. (Rule 232).
Disposal of Excisable Goods:- In the case of excisable goods held in the custody of Criminal Courts, notice of he date of auction or other method of disposal shall be issued to the Excise Authority concerned requiring such authority to arrange for the collection of the duty leviable if any, on the goods and for the issue of transport permit where necessary. The Excise Authority may also be required to satisfy itself that the purchaser in auction or otherwise is licensed to deal in such goods. (Rule 233).
Similarly, a word as to Registers of case properties that are essential in this regard is not out of scope. The following registers are to be scrupulously maintained by the criminal courts relating to the case properties.
1. CR-15 is the Property Register
2. CR -16 is the Unclaimed case property Register.
3. Auction Register
4. Confiscated Property Register
5. Register of Sessions Court Orders
6. Properties to be sent to Mint.
Conclusion:– While dealing case properties on criminal side, procedure under the code and rules framed by High Court, both are kept in mind. As I referred to above, ”Rules of procedure without rules of content are empty, while rules of content without rules of procedure are blind”. Therefore, these both are important. Either take custody of case property or to submit the case property from one court to other court or to disposal of case property, the above referred to procedure, as provided under sections 451 to 459 of Cr.P.C and Rules 220 to 234 of Crl.R.P are very important. The object and scheme of sections 451 to 459 of Cr.P.C is succinctly explained the Hon’ble Supreme Court in the case reported in (2002) 10 SCC 283 (Supra). In view of the ratio laid down in this case, we must remember that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. The present study is dedicated to enable those who are interested in knowing the elements of this subject.
respected sir, your article on custody of the property pending trial is interesting. I am an advocate dealing with cow protection cases since 1990, When the cattle are seized the police are handing over to the Go seva organisations right from 1992 barring some exceptions .Is it proper to hand over the custody when the allegation isthat they are illegally going to slaughter house. Will any safe guards protect the cattle? Wii the imposed conditions work?. How a man who wants to make the money immediately by slaughtering them.There are so many trickish issues involved.The right remedy is to give the custody to goshalas with the same conditions and dispose of the case soon,jayashree sarathy.
Very well explained.
A very useful subject to all the young judicial officers when they deal with criminal cases. There are no words for the efforts made by u sir on this topic.
Thanks for this. We really appreciate your time and effort. This not only helps public but also provides a new perspective to the topic.
Sir ,my cousin was accused for damaging a compound wall illegally built by the neighbour..he gave a complaint to a local police station and the police arrested my cousin and impounded his vehicle also.After my cousin took bail he moved the court and took possession of the vehicle..He later disposed the vehicle assss it got marooned in the floods.The trial started only after five years and the all witnesses and even the complainant backtracked(turned hostile) .Now the magistrate is asking to produce the vehicle..what is the solution
What happens to the property if there is a counter claim, like in hypothecated property or pledged gold in a bank.
Can a police give back the gold or any property by taking bond as per sec 102 (3)
or should he follow the process in sections 451 and 457
In one case the State Vigilance Deptt. has filed corruption case against the main accursed which is decided by the lower court and now accused filed appeal against this order before the Hon’ble High Court. During the proceedings, the lower court has freezed the bank accounts of main accused, main accused’s brother and brother’s wife. The lower court passed the judgement on 10.01.2018. In this order nothing clarified about the accounts freezed. The huge demand/dues (income-tax) are pending against the brother and wife of main accused. The query is that whether the amount lying in the bank accounts of brother and his wife can be adjusted against the govt. statutory dues (income-tax demand) pending against them. The brother and his wife has also been declared proclaimed offender by the lower court. Can We file appeal/application before the Hon’ble High Court to release these bank accounts.
Sir, the article has been written pretty succinctly and helped me a learn a great deal about the topic.