1. These criminal revision cases are against the common order in Criminal M.P Nos. 47, 56 and ??? of 1985. Three petitions were filed seeking return of gold jewellery, silver articles and some documents. The offence is stated to be under section 5(1)(e) of the Prevention of Corruption Act as disproportionate assets are alleged to have been found and during the raid the gold jewellery and other articles were seized. Crl. M.P No. 47/85 is at the instance of the daughter of the accused officer and she says that she is the owner of gold jewellery and silver articles and some documents and she is entitled for return thereof. Criminal M.P No. 56/85 is filed by the brother of the office and he is seeking for the return of the gold necklace as he is the owner. Criminal M.P No. 62/85 is filed by the wife of the accused officer claiming that she is the owner of the articles. In the counter filed on behalf of the State, it is stated that these petitions are filed with the sole object of stalling the investigation and to explain away the assets in the possession of the officer. Further they have not produced any evidence to substantiate their claim and the case is still under investigation and the court has no jurisdiction to entertain the applications filed by the third party at this stage for the return of the seized articles. The properties and documents as well were produced before the court on 2-11-1984 and at the request of the investigating officer, the documents were returned to him for the purpose of further investigation and at the request of the officer the gold and silver articles were permitted to be kept in bank locker for safe custody. The gold and silver articles and also documents were seized during the house search. The court below negatived the plea that the investigating officer should be permitted to retain the gold and silver articles for the purpose of investigation. It is held that section 457 Cr. P.C applies to the situation and the court has ample jurisdiction to return the articles. The court below stated that the accused officer, did not claim that these jewels belong to him and nobody else has laid any claim for these items of property produced into court. It is further held that prima facie is made not and P.Ws 1 to 3 are entitled for the items of property which they are claiming in their petitions.
2. The learned Standing Counsel for A C B cases contended that the court has no jurisdiction to return the property under section 457 Cr. P.C and there is no provision enabling the return of the property. Further in any event, the court cannot embark upon an enquiry into the title. The enquiry should be confined only to their right to the possession of the property but not the ownership and the enquiry and finding regarding prima facie ownership is manifestly illegal and unjustified. The learned counsel for the respondents contended that in a situation where the articles have been seized the persons who are the rightful owners can claim the property and seek for return of the property. The court is justified in enquiring into the matter whether the claimants are prima facie entitled to the properties, and section 457 Cr. P.C is the appropriate provision that is applicable in the circumstances. To get at the rival contentions, it is necessary to have grips over Sections 451, 452 and 457 Cr. P.C which are as follows:
“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 according such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Explanation: For the purpose 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.
452. Order for disposal of property at conclusion of trail: (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 sureties, 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 section 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.
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 an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal 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.”
3. Section 451 empowers the court to pass appropriate orders for the custody of the property produced during the enquiry or trial and in the event of speedy decay the court may direct the sale of the property. The application can be made under section 451 during the pendency of the enquiry or trial on production of property in the court. Section 452 confers power on the court to direct the disposal of property on the conclusion of trial or enquiry. Therefore section 451 can be invoked during the currency of the enquiry or trial and section 452 can be pressed into service after the termination of the enquiry and trial and the power can be exercised under both the provisions when the property is in the custody of the court or produced before the court. The directions can be given after commencement of the trial or enquiry. Obviously either section 451 or section 452 does not apply as the enquiry or trial did not commence and the case is still in investigation stage. Section 457 Cr PC comprises three stages. The initial step is report by a police officer to the Magistrate regarding seizure of the property and the next event is non-production of such property during enquiry or trial and in this situation the Magistrate is empowered to give suitable directions regarding disposal or delivery of the property.
4. In Ram Prakash Sharma v. State of Haryana (1) (1978) 2 SCC 491 : AIR 1978 S.C 1282 the police seized currency notes and is stated to have been seized in connection with an offence registered against an accused. The application was filed for return of the money. While considering the issue whether the Criminal Court has power to release property seized by the police from the person and reported to the court but not yet produced before the court, the Supreme Court held as follows:—
“Chapter 34 of the Criminal Procedure Code deals with disposal of property. There is a trichotomy in the sense that where property has been seized by the police, but not produced before the court, the power to dispose it of is covered by S. 457. Where property has been seized and/or otherwise produced before the Court, the manner to dispose of such property is governed by S. 451. If the question of disposal arises after the enquiry or trial in any criminal court is concluded, the disposal of the property involved in the case is governed by S. 452.”
5. This is a case where the property is not produced before the court and the Supreme Court held that section 457 Cr. P.C is an appropriate provision applicable in the circumstances. In Basava Kom Dyamogouda Patil v. State of Mysore (2) (1977) 4 SCC 358 : AIR 1977 SC 1749 the Supreme Court held that a production before the Court does not mean physical custody or possession by the Court, but includes even control exercised by the court by passing an order regarding the custody of the articles. Where the Magistrate, after having been informed that the articles have been produced before the court, directs the Sub-Inspector to keep them with him in safe custody, to get them verified and valued by a goldsmith, the articles are undoubtedly produced before the court and become custodia legis. In Furushotbam Das Banarsidas v. State (3) AIR 1952 Allahabad 470 the goods were consigned to self at Kanpur. The railway receipt was sent to Bank of Baroda with instructions to deliver to Sitharam on payment of Rs. 30,000/-. Mean while some unknown person forged the railway receipt and took delivery of the goods from railway and pawned the goods and received money and absconded. On presentation of genuine railway receipt by Bank of Baroda, the police traced out the goods in the godown of the applicant and seized them. As the forger remained untraced, the Magistrate ordered them to be delivered to the railway. While considering the jurisdiction of the court to pass an order regarding the release or custody of the seized property, the Allahabad High Court referred to sections 516-A to 526 of the old Cr. P.C and held as follows:—
“The disposal of the property is not governed by Ss. 516-A and 517. There was no enquiry or trial before any criminal Court nor was the property produced before the learned Magistrate. It is not a property governed by S. 521. As it was not seized under S. 550 its disposal is not governed by S. 523. Though S. 523 does not specifically refer to S. 550, it refers to those circumstances of seizure which are mentioned in S. 550. It is conceded that there is no other provision under which the order could have been passed by the learned Magistrate. It follows that the order under revision is not on order passed, or even required to be passed under the Code and must be treated as an administrative or executive order. It was for the police, who had seized the property under S. 165, to dispose it of on their own responsibility. The learned Magistrate was not concerned with the disposal because neither was it produced before him, nor did he hold any enquiry or trial, nor did he authorise the seizure nor was the seizure even reported to him. Seizure of property under S. 550 must be reported at once to a Magistrate who is bound to pass orders for its disposal. In this case there is no evidence that the seizure of the bags was reported to the learned Magistrate when it was made; his directions were sought for, when the investigation was concluded and the final report submitted. Seeking directions for disposal is not the same thing as reporting the seizure. The Code contains no provision for disposal of property seized during the investigation which results in a final report; evidently it leaves it to the police to dispose of it. A Magistrate has nothing to do with it.”
6. It is further held that the Magistrate is not a civil court and has no power to decide disputes about title, and the enquiry should be limited to find out as to who is entitled to the possession. In Muneshwar Bux Singh v. State (4) AIR 1956 Allahabad 199. It is held that the property should be delivered to a person who is entitled to possession and where the property is recovered from the possession of a person the court should hold normally that he is entitled to possession except in a situation where the person from whom the property is recovered denies that it was recovered from his possession or states that he is only in temporary custody of the property and belonged to someone else and his possession is found to be unlawful and dishonest. In Lakshmichand Rajmal v. Gopikisan Balmukund (5) AIR 1936 Bombay 171. the Division Bench of the Bombay High Court comprising Beaumont, C.J, and Macklin, J., held that the Magistrate is empowered to consider as to who is entitled to possession of the property seized by the police. In a situation where the police seized the property from a person who is not shown to have committed any offence in relation to the said property, the Magistrate can only enquire regarding the person entitled to possession and if any other person claims the property, the remedy is in a civil court. In Amarjit Singh v. The State of Punjab (6) 1982 Crl. LJ 523 the accused has taken away the parked tractor without the permission of the owners and alleged to have used the same in the commission of a crime under Sections 148, 364, 342, 307 and 149 IPC and the owner of the tractor moved an application before the Magistrate for the return of the same, but the Magistrate rejected the application on the ground that it was stained with blood. On revision, this order was confirmed. On a petition for quashing the orders, Dewan, J., while considering the ambit of Sections 451 and 457 Cr. P.C held as follows:—
“The short point that arises in this petition is as to whether the criminal court has power to release property seized by the police from the accused during the investigation but not yet produced before the Court. I think the Court has such power and that seems to be the scheme of the Code itself. Chapter XXXIV of the Code deals with the disposal of the property. Where property has been seized by the police but not yet produced before the Court, the power to dispose it of is covered by Section 457 of the Code. Where property has been seized and/or otherwise produced before the Court, the manner to dispose of such property is governed by Section 451 of the Code. If the question of disposal of property arises after an enquiry or trial in any criminal Court is concluded, the disposal of the property involved in the case is governed by Section 452 of the Code.”
7. In Bharat Heavy Electricals Ltd., Hyderabad v. State (7) 1981 Crl. LJ 1529 Messrs South Eastern Roadways, Hyderabad were entrusted with the job of transporting steel pipes etc., and deliver them to Bharat Heavy Electricals Ltd., at Ramachandrapuram. Instead of delivering them, South Eastern Roadways retained with them and committed criminal breach of trust. A case was registered under Section 407 IPC and a petition was filed by the Bharat Heavy Electricals Limited that they may be permitted to utilise the above material even before the trial of the case, as this property is not required for identification. This move was resisted on the ground that the charge sheet is not filed so far and the goods could not be finally disposed of. The Magistrate held that the property can be disposed of under Section 451 Cr. P.C after recording some evidence only during the pendency of the trial and as the charge sheet was not filed the petition is premature and closed the petition without pronouncing any final order observing that the petitioner should await the recording of evidence. As against this order, the revision was filed. Gangadhara Rao, J., held as follows:—
“In view of these decisions I hold that since in this case the charge sheet has not been so far filed, there is no inquiry or trial pending and, therefore, orders could not be passed under Section 451 Cr. P.C They could be passed only under section 457 Cr. P.C Under Section 457(1) Cr. P.C 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. Therefore, in the case on hand, I am of the opinion that the Magistrate could pass an order directing the delivery of the property to the petitioner company under Section 457(1) Cr. P.C Even if I am wrong, I could still direct the delivery of the property to the petitioner-company under Section 482 Cr. P.C in order to secure the ends of justice.”
8. Chapter XXXIV Cr. P.C bearing the caption “Disposal of Property” is concerned with directions regarding the custody or disposal of the property in diverse situations. The relevant provisions directly touching the issue are Secs. 451, 452 and 457 Cr. P.C Section 451 empowers the court to issue appropriate directions pending the enquiry or trial regarding the custody of the property seized and produced before the court. When it is considered that the property is liable to speedy and natural decay, the court is empowered to issue necessary directions for sale or disposal. Section 451 is parimateria with Section 516-A of the old Code. The condition precedent for invoking the power under Section 451 is the production of the seized property before the court and this order is a transitory one during the currency of the enquiry or trial. Sec. 452 analogous to Secs. 517 and 518 of the old Code is concerned with the disposal of the property on the termination of the enquiry or trial. This provision confers power on the court to pass appropriate orders as to the disposal, destruction or confiscation of property after the conclusion of the enquiry or trial. The directions pursuant to Sec. 451 enure till the cessation of trial and enquiry and the orders under Sec. 452 come into play on the closure of enquiry and trial. The demarcation between Sections 451 and 452 is the conclusion of trial and enquiry. Sec. 451 comprehends the period between the inaugaration of enquiry and trial and the conclusion thereof and the directions cannot be pushed back to the period anterior to the commencement of enquiry or trial. It is fairly settled that investigation by police is not an integral part of enquiry or trial and on completion of investigation of police the trial commences. Section 457 corresponds to section 523 of the old Code. The issuance of directions regarding the disposal or delivery of the property under Sec. 457 arises when the seizure of the property by the police officer is reported to a Magistrate and the property seized is not produced before the Criminal Court during the enquiry or trial. Section 457 comprises three stages viz., the seizure of the property by a police officer under the provisions of Cr. P.C and such seizure is reported to the Magistrate and the seized property is not produced before the Criminal Court during the enquiry or trial and on satisfaction of these three requirements, the Magistrate is empowered to issue appropriate directions with regard to the disposal or delivery of such property pending enquiry or trial. The common denominator in both Sec. 451 and Sec. 457 is the pendency of the enquiry or trial as distinct from conclusion of trial in Sec. 452. The diametrically opposite situations visualised in Sections 451 and 457 are the production of seized property in Section 451 and non-production of seized property in Section 457. 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 Sec. 457 the directions can be issued for custody or disposal of the property when the police lodges a report of the factum of seizure of property and when such property is not produced before the court. The orders passed under both Section 451 and Section 457 are during the pendency of trial or enquiry. The orders contemplated under Sec. 451 or Sec. 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. Section 452 can be invoked after the conclusion of trial or enquiry.
9. The decisions in Ram Prakash v. State of Haryana (1 supra) and Bharat Heavy Electricals Ltd. v. State (7 supra) do not bear affinity to the situation in the instant case. Both the decisions did not deal with the situation of applicability of Section 451 or Section 457 during the investigation stage. Further in the decision of the Supreme Court, the property seized is not produced before the court and in the instant case the seized property is produced before the court and in this view Sec. 457 is not applicable and the decision of the Supreme Court is also not applicable. The facts in Bharat Heavy Electricals Ltd. v. State (7 supra) are not intimate with the situation in the instant case and further ratiocination cannot be deduced from this decision as Gangadhara Rao, J., entertained a doubt and ultimately had recourse to Sec. 482 Cr. P.C
10. The court below passed the impungned order on the basis that Section 457 is applicable. In view of the production of the seized property in court the applicability of Sec. 457 is excluded apart from the conclusion herein above that Sec. 451 or Sec. 457 cannot be invoked at the investigation stage. The learned Standing Counsel contended that the court has no jurisdiction to enquire into the title and it will be tantamount to prejudging the issue and it is premature at this stage. This is sought to be refuted by the learned counsel for the respondents by contending that the court below considered whether the claimants have prima facie title to the property. At this stage the court has to enquire as to who is entitled to the possession of the property. The enquiry at this stage regarding the title or even prima facie title is not appropriate.
11. In the view taken above, the order is liable to be set aside. But however this will not solve the present impasse. The properties were seized from the house of the accused officer. The burden is upon the accused officer to prove that the assets are not disproportionate or the properties do not belong to him at all. This is a matter concerning the enquiry at the final stage. But however in view of the fact that the court below has directed the release of the property and the property has already been released pursuant to the said order it is not just or equitable to direct to return the property. It is stated that the identification of the property is not necessary and further all particulars regarding the weight and quality of the jewels have been ascertained. In view of these circumstances the properties released to the claimants may be retained with them subject to the condition that they undertake to produce the properties before the investigating officer as and when they are required and also on the condition that the accused officer shall furnish security of the immoveable property belonging to himself or his wife for a sum of Rs. 3 lakhs to the satisfaction of the Principal Special Judge, Hyderabad within six weeks of the receipt of this order failing which the released property shall be produced in the court.
12. The learned Standing Counsel commented heavily upon the order of the court below declining to stay the release of the properties to the claimants for at least one day to enable the State to prefer an appeal and obtain appropriate orders, it is not necessary to dilate upon this now and the comment of the learned Standing Counsel is not without force. The directions of the court below regarding production of property or otherwise shall be adhered to.
13. The revision petitions are disposed of accordingly.
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