Sivaraman Nair, J.:— This Revision Case comes before us on a reference from our learned brother Radhrakrishna Rao, J., on the question whether petitioners are entitled for return of the properties seized by the Central Bureau of Investigation from them, pending investigation. The reference was occasioned by a decision of a division bench of this Court in State v. Syed Belquis Sultana, 1985 (2) ALT 383, the correctness of which was apparently doubted.
2. The facts of the case are the following:
The Central Bureau of Investigation registered a case in R.C No. 9(A)/89-SPE, Hyderabad under Section 5(2) read with 5(1)(e) of the Prevention of Corruption Act, against one Sri Raghavayya, General Secretary of the South Central Railway Employees Union, Secunderabad. Petitioners 1 and 3 are the brothers and the 2nd petitioner is nephew of Sri Raghavaiah. On 15.3.1989, the investigating officer searched the premises of the petitioners bearing No. 25-71 and seized several documents, papers, key of the locker and cash of Rs. 25,400/- under two search lists. Out of the cash seized, Rs. 25,000/- was stated to have belonged to one Imamuddin, a retired driver. Some of the documents ware said to belong to the petitioners. Since key of the bank locker belonging to the petitioners was seized, the jewellery of the family could not be taken out or used during festival and religious occasions. The 1st petitioner filed Criminal M.P No. 265/89 on 19.6.1989 before the Special Court for C.B.I Cases, Hyderabad for return of the documents and articles seized by the C.B.I That was dismissed on 20.7.1989 with an observation that the petitioners could file a petition after investigation was over. The driver, Imamuddin filed criminal M.P No. 259/89 for return of Rs. 25,000/- and the same was paid to him after accepting a bank guarantee. Petitioners thereafter filed Criminal M.P No. 52/90 for return of seized articles. That was dismissed stating that the investigation should be completed within three months, on the aspect of the Jewellery and Fixed Deposit Receipts and thereupon, petitioners could file a petition after three months for return of those articles. The said period of three months having expired on 11.6.1990, petitioners filed Criminal M.P No. 257/90. The Special Judge dismissed that application by his order dt. 26th December, 1990. He felt compelled to follow Balaji v. State of A.P, 1976 Crl. LJ. 1461, and State v. Belquis Sultana, supra, holding that the court had no jurisdiction under section 457 to order disposal of the property before commencement of enquiry or trial, though, he was of the opinion, following the ratio of Bharat Heavy Electricals Ltd. v. State, 1981 Crl. LJ. 1529, and Ram Prakash Sharma v. State of Haryana, 1978 S.C 1282, which were considered in Belquis Sultana, supra, that “Section 457 squarely applies to the stage where the matter is still under investigation and the charge sheet is not yet filed in contrast to Section 451, of the Code of Criminal Procedure”. He felt that he was bound by the later decision of our High Court in Belquis Sultana, supra, and being a subordinate to the High Court of Andhra Pradesh, he could not but follow that decision. On facts, he found that the petitioner was entitled to return of the locker keys, since “the gold jewellery will not be marked as material objects at the time of trial and their value alone will be considered, for which the jewellery need not be retained”. He therefore held that the petitioners were entitled to the return of locker keys and the documents mentioned in clause (c) though investigation was not completed. However, in view of the finding on point of jurisdiction, the Special Judge dismissed the application. It is against that order that this Criminal Revision Case has been filed.
3. Sri C. Padmanabha Reddy, counsel for the petitioners submitted that the decision in Belquis Sultana, supra, cannot hold the field in view of the decision of the Supreme in Ram Prakash Sharma, supra. He also submitted that the Special Judge was right in his conclusion that Section 457 Cr. P.C applies to disposal of property which was seized but whether produced or not in court during the course of investigation and before the enquiry or trial commenced. It is necessary to read Section 457 of the code of Criminal Procedure, 1973 to understand the controversy which arises in this case. That provision substituted section 523 of the Code of Criminal Procedure 1898 and is in the following terms:
457. Procedure by police upon seizure of property:
(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal court during any enquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.”
4. Section 516-A to Section 525 of the old Code and Sections 415 to 459 of the new Code deal with disposal of properties. The scheme of the Chapter is to divide disposal of property into three stages. Section 457 deals with disposal or delivery of property which is seized by the police and which seizure has to be reported to a Magistrate. Read in the context of Sections 451, 452 and 456, it will be evident that Section 457 deals with the stage anterior to commencement of enquiry or trial. Section 451 deals with the power of the court to ‘order custody and disposal of the property pending trials’ whereas Section 452 and 456 deals with ‘order of disposal of property at the conculsion of trial’. The only remaining stage of the proceedings is investigation prior to the commencement of inquiry or trial. It is therefore no difficult to understand section 457 to confer power on the Magistrate to order disposal or delivery of property at a stage different from those covered by Section 451, 452 and 456. If, on the other hand, we are to adopt the reasoning of Balaji, supra, and Belquis Sultana, supra, in understanding the meaning of Section 457, that section will be redundant, since that very stage is covered by Section 451 of the Code of Criminal procedure.
5. In Balaji, supra, Punnayya, J., held that in a case where the Magistrate has no power to hold enquiry or trial under the new Criminal Procedure Code though has power to commit the case to the Sessions Court, he is not given the power to invoke the provisions of Section 457 of the code and pass drders of disposal in view of the requirements of Section 457. He assumed that it would have been competent under Section 523 of the old Code. But he noticed two differences between that provision and Section 457 of the new Code. They were (1) the police officer who seizes property under Section 51 or 102 of the Code has no obligation to report the seizure to the Magistrate forthwith, and (2) in the old section the Magistrate had power to pass orders of disposal even before the enquiry or trial of the offence in respect of which the property was seized, while in the new section the Magistrate has no such power. We do not think that this reasoning can hold good, when we read Sections 451 to 459 together as parts of the scheme relating to the disposal of properties.
6. The same provision was considered in a number of decisions. A few of them are - Ambica roy v. State of West Bengal, 1974 Crl. LJ 1002, M.S laggi v. Subaschandra Mohapatra, 1977 Crl.LJ 1902, Ajai Singh v. Nathilal, 1978 Crl.LJ 629, P.V Joseph v. State of Kerala, 1978 Crl. LJ 1206, Bharath Heavy Electricals v. State, Supra, Thimothy v. State Of Kerala, 1987 Crl. LJ. 1313, and Krushna Charan Mohanty v. State of Orissa, 1989 Crl. LJ. 1025.
7. In Ambica Roy, supra, the Calcutta High Court held:
“The words “such property is not produced before a criminal Court during the inquiry or trial” merely refer to the stage of investigation and not the stage of inquiry or trial. The words relied upon by the Chief Metropolitan Magistrate, Calcutta, therefore do not constitute a bar but a condition precedent, not a disqualification but a qualification; and not an exception but an essential ingredient forming the main spring of such application.”
8. In M.S faggi supra, the Orissa High Court dealt with the same question and held:
“the factum of seizure of property by the police having been brought to the cognizance of the Magistrate by a petition of the opposite party, the Magistrate acquired lawful jurisdiction to proceed under Section 457”.
9. The Court held that the report need not be made only by a police officer but may be made even by any person interested. In such circumstances, the Magistrate has got discretion to pass necessary orders.
10. A Division Bench of Allahabad High Court in Ajay Singh, supra, held that Section 457 is more or less a residuary provision dealing with property not covered by Sections 451 and 452 and is applicable when (1) the property has been seized by a police officer; (2) such a seizure is reported to a Magistrate under the provisions of the Code, and (3) the property so seized is not produced before a Criminal Court during an inquiry or trial. The court also emphasised that the words “is not produced etc.” in sub-section (1) refers merely to a stage of investigation and not the stage of inquiry or trial. If the property which is seized is produced before a Criminal Court during inquiry or trial, Section 457 ceases to operate and Section 415 takes over. With the termination of inquiry or trial Section 452. will become exclusively operative.
11. In P.V Joseph, supra, the Kerala High Court differed from Balaji, supra, after adverting to the reasoning of Punnayya, J. that there was difference in Section 523 of the old Code and Section 457 of the new Code, in that the latter did not authorise specifically to pass an order during investigation and that the old section specifically referred to the obligation of the police officer seizing property, to report such seizure to court. The court held—
“giving the words of Sec. 457 their ordinary meaning, only two conditions have to be fulfilled for acting under the section and they are - seizure of the property is reported to Magistrate, and that the property is not produced before the criminal Court in any enquiry or trial.”
12. Understanding the scope of Section 457 in the context in which it appears, the court held that if the above two conditions are satisfied, irrespective of the question whether the property is produced before the Magistrate or not, and irrespective of the question whether he is competent to hold inquiry or trial of the case in which the property is involved or not, the Magistrate can at the stage of investigation itself pass order under Section 457.
13. In Bharat Heavy Electricals Ltd., supra, Gangadhara Rao, J. dealing with the same question held:
“Since in this case charge-sheet has not been so far filed, there was no inquiry or trial pending and therefore, orders could not be passed under Section 451. They could be passed only under Section 457 and the Magistrate could pass an order direction the delivery of the property to the undertaking under section 457(1). When the seizure of property by any police officer is reported to a Magistrate and such property is not produced before a Criminal Court during an enquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof.”
14. It is true Gangadhara Rao, J., added—
“if I am wrong, I could still direct the delivery of the property to the petitioner-company under Section 482 Criminal Procedure Code in order to secure the ends of justice.”
15. In Belquis Sultana, supra, Rama Rao, J. held as follows:
“To sum up the directions regarding custody and disposal of property can be given by the court under Section 451, when the property seized by the police is produced before the court. Under Section 457 the directions can be issued for custody or disposal of the property when the police lay a report of the fact of seizure of property and when such property is not produced before the court. The orders passed under both Sections 451 and Section 457 are during the pendency of trial or enquiry. The orders contemplated under section 451 or Section 457 are confined to the period of trial or enquiry. The proceedings of investigation are not within the realm of either enquiry or trial and therefore the court is not competent to pass orders under section 451 or Section 457 during the investigation stage. Sec. 452 can be invoked after the conclusion of trial or enquiry.”
16. Rama Rao, J., split Section 457 into three stages: viz., (1) seizure of the property by a police officer under the provisions of the Code, (2) report thereafter to a Magistrate, and (3) non production of such property before the Criminal Court during enquiry or trial. He assumed that Section 457 applies only when enquiry or trial has commenced and the property is not produced in court. It was therefore that he came to the further conclusion that Section 451 applies to a stage where enquiry or trial has commenced and the property has been produced before the Magistrate. But Section 457 applies to a case where enquiry or trial has commenced and the property is not produced. It is for that reason that Rama Rao, J., refused to follow the decision in Ram Prakash, supra.
17. A similar question was considered by the Kerala High Court in Thimothy, supra. The court held that Section 457 refers to cases of seizure under the Cr. PC and reported to a Magistrate. Section 451 deals with cases where property is produced during any inquiry or trial and Section 452 deals with cases when an inquiry or trial is concluded. The court held that Section 457 deals with a situation where an inquiry or trial is neither pending nor concluded, and it deals with cases in the pre-trial or pre-inquiry stage.
18. Similar question was considered by the Orissa High Court in Krushan Charan Mohanty, supra. The Court refused to follow the decision in Belquis Sultana, supra. The court observed:
“The learned Judge of the Andhra Pradesh High Court in deciding the case reported in 1986 (1) Crimes 177 appears to have given the literal meaning to the words used in S. 457(1). But in my view, such an interpretation would cause great injustice and there is no legislative intent behind giving the aforesaid interpretation. Placing of a report by the Police before a Magistrate cannot be said to be a condition precedent for entertaining an application under section 457. If the fact of seizure is brought to the notice of the Magistrate by any party interested or even, by a party who applies for delivery of the property, it would be sufficient to give jurisdiction to the Magistrate to entertain and deal with the application under S. 457 of the Code.”
19. We are of the opinion that Balaji, supra, and Belquis Sultana, supra, have gone wrong on some essential points. It was wrongly assumed (1) that the court gets jurisdiction only if seizure of property is reported by the police and not otherwise. (2) that only when the property which the police has seized is produced in court during inquiry or trial can the court pass orders in respect of that, (3) that only that court has power to pass orders under Section 457, because the report has to be made only to the court inquiring or trying offence, and (4) that both Sections 451 and 457 deal with cases where inquiry or trial has commenced.
20. We are of the opinion that the very lucid interpretation in Ram Prakash, supra, is conclusive of the Scope of Section 457 Cr. PC and negatives all the above said assumptions. The court noticed the trichotomy provided in Sections 457, 451 and 452 as (1) where the property has been seized by the police but not produced before the court, the power to dispose it of is covered by Section 457, (2) Where property has been seized and or otherwise produced before Court, the manner to dispose of such property is governed by section 451, and (3) If the question of disposal arises after the enquiry or trial in any criminal Court is concluded, the disposal of property involved in the case is governed by Section 452. Rama Rao, J., extracted paragraph-3 of the judgment, but did not correctly advert to the facts of Ram Prakash Sharma, supra. In that case, the police had recovered a considerable sum of money from a third party; the money was stated to have been seized in connection with an offence registered against the accused person. The case was under investigation and no inquiry or trial had commenced. Whether the appellant himself would be a witness or an accused was not certain at that time. In that situation the Court held:
“Be that as it may, the situation is squarely covered by Section 457 Cr. PC.”
…………..
“All that we need do at the moment is to uphold the power of the court to release the property and direct the special Judge to hod an investigation into the necessity for the notes seized to be retained with the police or in the court for future use at the time of the inquiry or trial.”
21. The assumption which Rama Raoji, made was that Sections 451 and 457 deal with cases where police has seized property and has reported such seizure to court after commencement of the enquiry or trial, the former provision being applicable when the property is produced in court whereas the latter in cases where the property is not produced. It is clear form Ram Prakash, supra that the only section which applies to that situation is Section 451 and not section 457 of the Act. The latter section has no application after commencement of enquiry or trial, whether the property which is seized has or has not been produced in Court. Section 457 applies to cases where property is seized by police during an anterior stage when inquiry or trial has not commenced. It is immaterial whether the property is produced in Court or not. Equally immaterial is the question whether the police does or does not report such seizure of property to Court; the police, not being under an obligation to immediately report the seizure of property to court. It shall not be as if the party from whom the property is seized has no remedy in that event.
22. We are of the opinion that unless we read more words which are not in the section, there is no scope of understanding Section 457 of the code of Criminal Procedure in the manner in which it was done in Balaji, supra and Belquis Sultana, supra. The section does not, either in express words or by necessary implication, state that the Magistrate gets jurisdiction only if the police reports seizure of property and not otherwise. It does not provide that only the Magistrate who is competent to inquire into or try the offence has jurisdiction to order release or delivery of property, nor is it provided in specific words or by necessary implication that Sections 451 and 457 apply to the stage after commencement of inquiry or trial. The same is the position regarding requirement that only when the seized property is produced during inquiry or trial can the Court have jurisdiction under Section 457 of the Code. These consequences may follow, if we supply words which are not in the provisions. Except for the purpose of avoiding a manifest absurdity or to read the provision in consonance with the context in which it appears, it is impermissible to interpret a provision of the statute by supplying non-existing words. It is axiomatic that it shall not be so done to restrict the jurisdiction of Courts when the enactment has conferred poser without imposing such restrictions. Muchless shall it be permissible if the effect of reading more words than are present in the statute, will be to create manifest absurdity or cause injustice to parties.
23. Nor was it correct to assume that the observations in Ram Prakash, supra had to be confined to cases where property has not been produced even after commencement of inquiry or trial. As a matter of fact the facts of Ram Prakash, supra stated in that decision make it clear that the case was only at the stage of investigation and no enquiry or trial had commenced. Reading the facts of the case, it should have been unmistakably clear that what the Supreme Court laid down was that Section 457 applies to a case where police has seized property at a stage other than or before commencement of enquiry or trial. Reading Section 457 is the context of the other provisions of Chapter-XXXIV of the Code of Criminal Procedure, we are of the opinion that the words “such property is hot produced before a Criminal Court during an enquiry or trial” qualifies the property and is not indicative of the stage of the proceedings. If the provision is so understood it fits into a composite scheme of disposal of property during three different stages. It will then be easy to locate the power of the Magistrate to pass orders relating to disposal of property before commencement of enquiry or trial. If it were otherwise, it may cause a lot of injustice, if the police officer is given a licence to retain indefinitely property which he has seized without reporting to or producing it in court, so as to enable him to dispose it of in any manner he likes.
24. When the Supreme Court has spoken in clear terms on a point of law, it is not for the High Court to wriggle out of the decision on reasons imaginary or real. Judicial discipline requires the Courts to follow the decisions of superior Courts in a hierarchial system. It is inescapable on a reading of Ram Prakash, supra that the Supreme Court had clearly held that Section 457 of the code of Criminal Procedure applies to cases where the police has seized property during stages other or earlier than enquiry or trial, viz., investigation.
25. We therefore hold that Balaji, supra, and Belquis Sultana, supra, were wrongly decided. We hold that Section 457 of the code of Criminal Procedure applies when police has seized property during the course of investigation and when such seizure is brought to the notice of any Magistrate, when enquiry or trial has not commenced.
26. We also hold that any magistrate to whom such seizures is reported may have jurisdiction to pass orders under the section. He need not be the magistrate who may inquire into the offence or try the offender. He may as well be the magistrate within whose jurisdiction the seizure was effected and to whom such seizure may be immediately reported. The rule that such orders may be passed by the Magistrate who may inquire into or try the offence is one of caution and prudence and not of jurisdiction. He may pass order not only when the police reports seizure of property. He may do so even when the party interested in or concerned with the property approaches the court. The magistrate can pass orders even if the property is not produced before him. This does not, however, mean that any Magistrate has got an unfettered discretion in the matter of disposal of property, nor does it mean that the party may shop for the Magistrate of his choice. Application for disposal or release of property may have to be made either to the Court which may have jurisdiction over the offence and the offender, or the Court within whose jurisdiction the property has been seized, and none other. The claim for return of property has to be decided on its own merits in each case. The Court has to exercise its judicial discretion after due consideration of the interest of justice including prospective necessity of the production of these seized articles at the time of trial. This can be ensured by hearing the investigating officer and considering his objections before passing any order. It is important that the seized property shall not be released to any person other than one who has intimate connection and concern with the property. It shall not be released if there is any likelihood in such return of property, in any manner, affecting or prejudicing the course of justice at the time of trial. It is essential in all such cases that the order under Section 457 sufficiently indicates that the court has adverted to the various relevant aspects as we have indicated above.
27. We further hold that the Special judge was right in his finding that the petitioners were entitled to the return of the locker keys and documents. If the inquiry or trial has commenced in the meantime, the petitioners may move the court for appropriate directions which are called for in the present stage of the proceedings, subject of course, to necessary safeguards as indicated above.
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