1. This criminal misc. petition under Section 482 Cr.P.C. has been preferred against the order dated 11.09.2013 passed by learned Chief Judicial Magistrate, Bhilwara in Criminal Case No.39/2012, whereby the learned court below has dismissed the application filed by the accused-petitioner for furnishing the bank guarantee.
2. Learned counsel for the petitioner has made a limited argument that under Section 451 Cr.P.C., the domain of the learned court would be to order for custody and disposal of the property pending trial in certain cases. Furthermore, under Section 451 Cr.P.C. in Explanation, as per learned counsel for the petitioner, the word "property" includes any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.
3. Learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat, reported in AIR 2003 SC 638, relevant portion of which is as follows:-
"4. Learned counsel further referred to the relevant Sections 451 and 457 of Code of Criminal Procedure, which reads thus--
"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 of trial, the Court may make such order as it thinks fit for the property 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.
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 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."
5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as--
(1) for the proper custody pending conclusion of the inquiry or trial;
(2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary;
(3) if the property is subject to speedy and natural decay to dispose of the same.
6. It is submitted that despite wide powers, proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody.
7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basayya Kom Dayamangouda Patil v. State of Mysore and Anr.: 1977 CriLJ 1141 : 1977 CriLJ 1141, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under:-
"4. 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. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain its ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquire or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
9. The Court further observed that where the 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.
10. To avoid a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.
Valuable Articles and Currency Notes
11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.
12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:-
(1) preparing detailed proper panchnama of such articles;
(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and
(3) after taking proper security.
13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see 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. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.
14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed.
15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrate who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.
16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.
17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.
18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."
4. The purport of the case law cited by learned counsel for the petitioner is that the power under Section 451 Cr.P.C. should be exercised expeditiously. The reason being that owner of the article should not suffer because of it remaining unused and the police should not be required to keep the article in safe custody. It has been further laid down in the afore cited case law that while giving custody of the article, the article should be released on proper security.
5. Learned Public Prosecutor has opposed the misc. petition.
6. After hearing the learned counsel for the parties as well
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as perusing the record of the case and the precedent law cited at the Bar, this Court is of the opinion that as per the legislative intent of Section 451 Cr.P.C., the property means any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence, and therefore, the release of vehicle/article/currency notes under Section 451 Cr.P.C. cannot be restricted merely on account of the fact that they were used for commission of any offence. 7. Furthermore, in the afore cited precedent law, the Hon'ble Apex Court has held that the court should pass appropriate orders immediately and the articles should not be kept for a long time at the police station, and the procedure for disposal of the seized valuable articles, currency notes, vehicles, seized liquor and narcotic drugs has been laid down therein. 8. In light of the aforesaid discussion and the afore cited precedent law, the present misc. petition is allowed. The impugned order dated 11.09.2013 passed by learned Chief Judicial Magistrate, Bhilwara in Criminal Case No.39/2012 is quashed and set aside and the amount of Rs.4,73,40,350/- is ordered to be released in favour of the petitioner under Section 451 Cr.P.C., in lieu of the Bank Guarantee and appropriate security in the like amount. Petition allowed.