Return of property and the existing criminal jurisprudence in this area

Have we ever thought about what actually happens to the property that becomes a subject matter of an inquiry/trial in a Criminal Court? Has it been dealt with in the Criminal Procedure Code, 1973 (CrPC)? What is the existing jurisprudence in this aspect? ?

I recently got acquainted with the provisions under Chapter XXXIV of Criminal Procedure Code, 1973 (CrPC) (Sections 451 to 459) which provide for the disposal of case property, i.e. property that has been produced before any Criminal Court during any inquiry or trial. To be precise, the predominant scope of these provisions is that when a property:

a.????is the subject matter of an offence;

b.????has been produced before the Court or is in its custody

the Court either passes an order for the proper custody of the property pending the conclusion of the inquiry or trial or its disposal based on the facts and circumstances in hand.

Premised on the stage of the criminal proceedings, when the property is sought for, the sections under CrPC are primarily categorised as follows:

Section 451: Order for custody and disposal of property pending trial in certain cases:

When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, 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.

Explanation - For the purposes of this section, "property" includes—

(a) property of any kind or document which is produced before the Court or which is in its custody;

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

From a plain reading of the provision, it can be understood that the legislative intent is to ensure that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court in a prompt and just manner, either by destroying the property or by returning it to the rightful claimants.

The Hon’ble Apex Court in Sunder Bhai Ambalal Desai v. State of Gujarat, [MANU/SC/1110/2002], dealt in detail with the scope of Section 451 of CrPC, particularly with respect to the disposal of property in the custody of the police station pending trial. Several directions to that effect were issued to the Courts to be borne in mind when determining the applicability of section 451 of CrPC.

The Hon’ble Apex Court in the said case observed that “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” This judgment was celebrated in the legal arena and was considered a game-changer in as much as it curbed the atrocities that were carried on in Police Stations when authorities used to retain properties for a long time that it eventually lost its utility and was rendered waste.

Amongst the guidelines issued, the crucial one was that the Courts at the time of delivering the possession of the property to its rightful claimants, may, if so required obtain a bond and security to prevent the evidence from being lost, altered or destroyed. Further, the Courts may also ensure 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.?In fact, the Hon’ble Apex Court went one step further to observe that certain articles are not to be kept for a long time at the police station, in any case, for not more than fifteen days to one month. ?

To date, the directions issued in the aforementioned case hold good and are being quoted and relied upon as standing guidelines by Courts in dealing with disputes related to seized vehicles, ornaments, narcotic drugs, and liquor among others under section 451 of CrPC.

Recently, in PMJ Gems and Jewellers Pvt. Ltd. vs. State [MANU/TN/2722/2021], a petition was filed before the Hon’ble Madras High Court challenging the onerous conditions imposed by the lower Court while allowing the application filed by the petitioner for return of property. The Court, by delving into the precedents and the guidelines provided thereof, upheld the powers of the Court under section 451 of the Act to permit the sale of any case property which if retained in custody for a long period is going to deteriorate its value/utility. As a natural corollary, the words, 'subject to speedy and natural decay' in section 451 of CrPC were extended beyond perishable items to include properties that are subject to deterioration in general.

Section 452: Order for disposal of property at the conclusion of trial:

Section 452 of the CrPC, on the other hand, is simpler and comes into the picture only after the conclusion of the inquiry or trial in a Criminal Court. The definition of the word ‘property’ has been expanded in section 452 to include even its converted or exchanged version so as to give full effect to the objectives of the provisions. It reads as follows:

(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without securities, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub-section (1), 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.

(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented until such appeal has been disposed of.

(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

In this context, reliance is placed on N.Madhavan v. State of Kerala (MANU/SC/0190/1979) wherein the Hon’ble Apex Court held that “The words "may make such order as it thinks fit" in Section 452, vest the Court with a discretion to dispose of the property in any of the three modes specified in the Section. But the exercise of such discretion is inherently a judicial function. The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. One of such well-recognised principles is that when after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property of class (a) or (b) to the person from whose custody it was taken.” Therefore, it can be understood that the law in this aspect is not rigid and the Courts generally align with the claimants and pass orders that render justice in the case.

However, the Courts should also be mindful of the fact that the scope of enquiry under Section 452 of CrPC is more summary in nature. The Criminal Court does not exercise its jurisdiction as if it is acting like a Civil Court deciding the title over the property. The order passed under Section 452 of CrPC is more consequential in nature and it pertains to only disposal of the property after the conclusion of the trial. (M.Ponraj v. Arial and Ors. [MANU/TN/5025/2019]).

Therefore, it can be inferred that Courts are vested with the duty to pass appropriate orders disposing of the property without any undue delay. It is relevant to note that sections 451 to 459 of the CrPC should be read and interpreted along with the Criminal Rules of Practice that is in effect in the concerned jurisdiction. Apart from the aforesaid, it is also relevant to note that the orders made by the Court under sections 451 and 452 of CrPC are appealable as prescribed in section 454 of CrPC.

How do we apply for this?

Here comes the interesting part! All of us can easily read the bare act, to know and understand what the sections are. But the practical application which nobody speaks of is rather simple if one knows the procedure beforehand. Whatever the nature of the property that is sought, the procedure is as follows:

1.????A signed affidavit along with the petition under section 451 or 452 of CrPC consisting of the facts and circumstances of the case, the nature of the property sought, and evidence to substantiate possession/ownership of the property

2.????The documentary evidence that establishes possession/ownership of the property should be submitted as an annexure along with the identification proof. For example, if it is a vehicle – the original registration certificate, if it is cash – the deposit receipt obtained from Court, basically any documentary evidence that establishes possession/ownership.

3.????Once the petition is submitted and it gets numbered, the Court adjudicates upon the merits of the cases after giving both parties an opportunity to be heard.

4.????Based on what the property sought is and the facts and circumstances of the case in hand, the Court traces the chain of custody and orders for delivery of the property to the rightful claimant with or without imposing conditions on the claimant.

5.????But do not fret, even if the Court dismisses your petition there is always an appellate remedy available!

Article by Sandhya S (Associate at Shabnam Banu & Associates)

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