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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