Wednesday 26 March 2014

Apex Court's Judgments- (2) -on 451, 452 Cr.P.C- Return and disposal of various kinds of case properties.



                                                                     REPORTABLE

                    IN THE SUPREME COURT OF INDIA
                        CIVIL ORIGINAL JURISDICTION
                   WRIT PETITION (C) NO. 14 OF 2008

General Insurance Council & Ors.               ...........Petitioners

                                  Versus

State of Andhra Pradesh & Ors.                 ..........Respondents


                                J U D G M E N T
Deepak Verma, J.

1.       Even though the question projected in this petition
filed under Article 32 of the Constitution of India stands
answered by a judgment of two learned judges of this Court
reported in (2002) 10 SCC 283    titled Sunderbhai Ambalal
Desai Versus State of Gujarat pertaining to interpretation
and mode of implementation of Sections 451 and 457 of the
Code    of   Criminal     Procedure,   1973    (hereinafter    shall    be
referred to as      'the Code'), but on account of certain grey
areas having been left untouched, which still cast clouds on
the    question,   this    petition    has    been   filed   for   further
directions, orders and clarifications.
2.       Petitioner No.1,       General Insurance Council has been
constituted under Section 64           C (b) of the Insurance Act,
1938 consisting of all the members and associate members of
the association as envisaged in Section 64A of the said Act,
who carry on general insurance business in India and are
being represented by Petitioner No. 1 and have been arrayed
as Petitioner Nos. 2 to 5 in the said petition.

3.         According to them, there has been a gross violation
of fundamental rights as conferred on them under Articles 14
and   19    of   the    Constitution       of    India.        Thus,       they    are
constrained      to    approach     this     Court    directly       by    filing    a
petition under Article 32 of the Constitution of India.                           They
further contended that despite the directions passed by this
Court in Sunderbhai Ambalal Desai                  (supra), as also in W.P.
(C) No. 282 of 2007             titled General Insurance Council and
Others Vs. State of Andhra Pradesh and Others, decided on
09.07.2007, there has not been full and complete compliance
of the same. Therefore, they have once again approached this
Court for issuing further directions so that national waste
with regard to the seized vehicles involved in commission of
various     offences      may      not   become       junk    and        their    road
worthiness be maintained.

4.         According to the Petitioners, the report of 2005 of
NCRB, 84,675 vehicles were reported lost, out of which 24,918
vehicles were recovered by the police and out of these, only
4,676   vehicles       were   finally      co-ordinated.            As    a    result,
several hundred crores worth of assets were lost. Further, by
the time the recovered vehicles are released, the same are
reduced to junk at the respective police stations.                            In other
words, Petitioners have prayed that national waste that is
being   caused        could   be   substantially        reduced,         curbed    and
eliminated to a great extent. Keeping in view the aforesaid
facts in mind, they have filed this Writ Petition.

5.          In   Sunderbhai        Ambalal    Desai    (supra),      the       Supreme
Court was primarily dealing with provisions of Sections 451
and 457     of   the      Code.      While      quoting      the   aforesaid      two
provisions of the Act in the judgment, it was observed in
para 7 as under:-
             "7.     In our view, the powers under
             Section 451 Cr PC 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 the 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."

6.       To safeguard the    interests   of the prosecution, it

was directed that following measures should be adopted giving

instances contained in para 12 reproduced hereinbelow:

             "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."


7.        While dealing with the seized vehicles from time to
time by the police either in commission of various offences
or abandoned vehicles or vehicles which are recovered during
investigation of complaint of thefts,          the court observed as
under:-

               "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 a 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 the 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 the 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."

                                                                
8.        Since it appeared to the Petitioners that despite
the said directions, the requirements of the Petitioners were
not being fulfilled, they were constrained to file W.P (C)
No. 282 of 2007 titled General Insurance Council and Others
Vs. State of Andhra Pradesh and Others, decided on 09.07.2007
by a coordinate Bench of two learned Judges of this Court.


9.        In   this   second   round    of   litigation   before   this
Court, a direction was sought with regard to compliance       of
Section 158 (6) of the Motor Vehicles Act, 1988 in short 'the
M.V. Act' and Rule 159 of the Central Motor Vehicles Rules,
1989 in short, 'the Rules'.

10.      This Court in the said matter after considering the

issue came to the following conclusion:-

                     "Since    there   is  a    mandatory
             requirement to act in the manner provided
             in   Section   158   (6)     there   is   no
             justifiable    reason    as  to    why   the
             requirement is not being followed.

                      It is, therefore, directed that
             all the State Governments and the Union
             Territories shall instruct, if not already
             done, all concerned police officers about
             the need to comply with the requirement of
             Section 158 (6) keeping in view the
             requirement indicated in Rule 159 and in
             Form 54.     Periodical checking shall be
             done by the Inspector General of Police
             concerned to ensure that the requirements
             are being complied with. In case there is
             non-compliance, appropriate action shall
             be taken against the erring officials.
             The Department of Transport and Highway
             shall make periodical verification to
             ensure that action is being taken and in
             case of any deviation immediately bring
             the same to the notice of the concerned
             State Government/Union Territories so that
             necessary action can be taken against the
             concerned officials."

                     The writ   petition   is   accordingly
             disposed of."


11.     Despite the aforesaid directions having been issued
by this Court in the aforesaid two matters, grievance is
still    being      made     by     the    Petitioners,           that        the   police,
investigating        agency       and     the    prosecuting            agency      are   not
taking   appropriate         and        adequate      steps       for    compliance        of
aforesaid directions issued by this Court. Therefore, a need
has arisen for giving further directions so as to clear the
clouds and iron out the creases.

12.      Notice of the said petition was issued to all the
States and Union Territories.                     Almost all the States have
contended that they have already issued necessary guidelines
and   directions       for     full       and    complete         compliance         of    the
provisions contained in Sections 451 and 457 of the Code as
elaborated in Sunderbhai Ambalal Desai (supra) as also under
Section 158 (6) of the M.V. Act and 159 of the Rules as
directed in General Insurance Council case (supra). Thus, in
one voice, they have contended that there would not be any
difficulty in compliance of the directions that may be issued
in furtherance of achieving the object as directed by this
Court.     Thus, in our view, there appears to be consensus in
this matter.

13.      Petitioners         have        submitted         that    information            with
regard to all insured vehicles in the country is available
with the Insurance Information Bureau created by IRDA.                                    This
information        could     be     utilised         to    assist       the     police      to
identify the insurer of the vehicle. Upon recovery of the
vehicle in police station, insurer/ complainant can call an
All   India    Toll    Free       No.     to    be        provided       by      Insurance
Information Bureau to give the information of the recovered
vehicle. Thereafter, the insured vehicle database would be
searched      to    identify       the    respective        insurer.             Upon     such
identification, this information can be communicated to the
respective         insurer        and     concerned         police        stations         for
necessary coordination.


    14.      In our considered opinion, the aforesaid information
is required to be utilised and followed scrupulously and has
to be given positively as and when asked for by the Insurer.
We   also   feel,   it   is   necessary   that    in   addition   to   the
directions issued by this Court in             Sunderbhai Ambalal Desai
(supra) considering       the   mandate   of    Section   451   read   with
Section 457 of the Code, the following further directions
with regard to seized vehicles are required to be given.

               "(A)    Insurer may be permitted to move a
               separate application for release of the
               recovered vehicle as soon as it is
               informed of such recovery before the
               Jurisdictional Court. Ordinarily, release
               shall be made within a period of 30 days
               from the date of the application. The
               necessary photographs may be taken duly
               authenticated   and   certified,   and   a
               detailed panchnama may be prepared before
               such release.

               (B)     The photographs so taken may be
               used as secondary evidence during trial.
               Hence, physical production of the vehicle
               may be dispensed with.

               (C)     Insurer      would      submit     an
               undertaking/guarantee      to    remit    the
               proceeds from the sale/auction of the
               vehicle conducted by the Insurance Company
               in the event that the Magistrate finally
               adjudicates that the rightful ownership of
               the vehicle does not vest with the
               insurer. The undertaking/guarantee would
               be furnished at the time of release of the
               vehicle, pursuant to the applcation for
               release    of    the    recovered    vehicle.
               Insistence    on  personal    bonds  may   be
               dispensed with looking to the corporate
               structure of the insurer."

15.       It is a matter of common knowledge that as and when
vehicles are seized         and kept in various police stations, not
only they occupy substantial space of the police stations but
upon being kept in open, are also prone to fast natural decay
on account       of    weather   conditions.     Even     a   good   maintained
vehicle loses its road worthiness if it is kept stationary in
the police station for more than fifteen days. Apart from the
above, it is also a matter of common knowledge that several
valuable and costly parts of the said vehicles are either
stolen    or     are    cannibalised    so   that    the      vehicles    become
unworthy of being driven on road. To avoid all this, apart
from the aforesaid directions issued hereinabove, we direct
that all the State Governments/ Union Territories/Director
Generals of Police shall ensure macro implementation of the
statutory provisions and further direct that the activities
of each and every police stations, especially with regard to
disposal of the seized vehicles be taken care of by the
Inspector         General        of    Police       of        the      concerned
Division/Commissioner            of     Police      of        the      concerned
cities/Superintendent of Police of the concerned district.
16.       In case any non-compliance is reported either by the
Petitioners or by any of the aggrieved party, then needless
to say, we would be constrained to take a serious view of the
matter against an erring officer who would be dealt with iron
hands.    With    the    aforesaid     directions,       this   writ   petition
stands finally disposed of.


                                 ......................................J.
                                                           [P.SATHASIVAM]




                            ......................................J.
                                                    [DEEPAK VERMA]

      New Delhi.
      April 19, 2010

CASE NO.:
Special Leave Petition (crl.)  2745 of 2002

PETITIONER:
SUNDERBHA1 AMBALAL DESAI

RESPONDENT:
STATE OF GUJARAT

DATE OF JUDGMENT: 01/10/2002

BENCH:
M.B. SHAH & D.M. DHARMADHIKARI

JUDGMENT:
JUDGMENT

2002 Supp(3) SCR 39

The following Order of the Court was delivered :

In these two petitions filed by the police inspectors serving the Gujarat
State, it has been contended that prosecuting agency has no right to ask
for remand of petitioners (accused) for the purpose of collecting evidence
and the application moved for remand of the petitioner (accused) was
unjustified because anticipatory bail was granted to them.

It is the prosecution version, as per the FIR lodged on 7.2.2002 by the
Assistant Commissioner of Police 'D" Division, Surat that petitioners and
other police personnel are involved in offences punishable under Sections
429, 420, 465, 468, 477-A and 114 IPC. It is alleged that when they were
working at various police stations, they have committed offences during the
period from 20.2.1992 to 23.11.2001 by replacement of mudammal articles
including golden ornaments by other spurious articles, misappropriation of
the amount which was kept at the police station, unauthorised auction of
the property which was seized and kept in the police custody pending trial
and tampering with the records of police station. The High Court by its
judgment and order dated 20.6.2002 rejected the application against the
order passed by the trial court granting remand of the petitioner. Hence,
these special leave petitions.

At the time of the hearing of these matters, learned counsel for the
parties submitted that various articles are kept at the police station for
a long period by not adhering to the procedure prescribed under Cr.P.C.,
which creates difficulties for keeping them in safe custody. Finally, the
sufferers are-either the State exchequer or the citizens whose articles are
kept in such custody. It is submitted that speedier procedure is required
to be evolved either by the Court or under the rules for disposal of
muddamal articles which are kept at various police stations as most of the
police stations are flooded with seized articles. It is, therefore,
submitted that directions be given so that burden of the Courts as well as
at the police station can, to some extent, be reduced and that there may
not be any scope for misappropriation or of replacement of valuable
articles by spurious articles.

Learned counsel further referred to the relevant Sections 451 and 457 of
Code of Criminal Procedure, which read 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 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.

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."

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.

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.

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 panchanama 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 properly 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.

The question of proper custody of the seized article is raised in number of
matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr.,
[1977] 4 SCC 358, 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 it 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 inquiry 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."

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.

To avoid such 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

With regard to valuable articles, such as golden or sliver 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.

For this purposes, 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 panchanama 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.

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 or 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.

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 SIIO 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.

Vehicles

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 Magistrates
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.

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.

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.

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.

For articles such as seized liquor also, prompt action should be taken in
disposing it of after preparing necessary panchnama. If sample is required
to be taken, sample may kept properly after sending it to the chemical
analyser, if required. But in no case, large quantity of liquor should be
stored at the police station. No purpose is served by such storing.

Similarly for the Narcotic drugs also, for its identification, procedure
under Section 451 Cr.P.C. should be followed of recording evidence and
disposal. Its identity could be on the basis of evidence recorded by the
Magistrate. Samples also should be sent immediately to the Chemical
Analyser so that subsequently, a contention may not be raised that the
article which was seized was not the same.

However these powers are to be exercised by the concerned Magistrate. We
hope and trust that the concerned Magistrate would take immediate action
for seeing that powers under Section 451 Cr.P.C. are properly and promptly
exercised and articles are not kept for a long time at the police station,
in any case, for not more than fifteen days to one month. This object can
also be achieved if there is proper supervision by the Registry of the
concerned High Court in seeing that the rules framed by the High Court with
regard to such articles are implemented properly.

Adjourned for three weeks.

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