Selvam v. State by Inspector of Police,Theevatipetti Police Station,Salem District

COMMON ORDERThese two revisions arise against orders dismissing petitionsunder section 451 Cr.P.C. The revision petitioner in Crl.R.C.No.1699of 2011 is accused of offence under section 302 IPC in case pendingcommittal in P.R.C. No.5 of 2011 on the file of Judicial MagistrateNo.II, Krishnagiri. He is accused of having used a lorry to causethe death of his wife. The revision petitioner in Crl.R.C.No.1766 of2011 is accused of having committed offences under Sections 279, 323and 307 of IPC and of having tried to cause the death of theinformant in the case, by dashing his motorcycle against him. In thefirst case, the Court below has dismissed the petition informing thatthe lorry was materially needed during the course of trial andinvestigation and that if custody was granted, there was a chance ofdestruction thereof. In the next, the Court below dismissed thepetition on the reasoning that the vehicle was a material object inthe case and that the case was a serious one. Some interestingquestions arise for consideration.2.The Hon'ble Supreme Court in Sunderbhai Ambalal Desai v.State of Gujarat, (2003 (1) CTC 175) and General Insurance Counciland others v. State of Andhra Pradesh and others, (2010) 6 SCC 768,has informed the need for passing orders of custody of vehicles,inter alia towards avoiding their going to seed by exposure to sunand rain as also through intervention of manual agency. Would theprinciples enunciated in these cases also enure to the benefit ofaccused persons?3.The Supreme Court has indicated that vehicles need not beproduced in court and in lieu thereof secondary evidence could beread. Photographs may be taken, duly authenticated and certified anddetailed panchnama may be prepared. The photographs so taken may beused as secondary evidence during trial. If the answer to questionone above is in the affirmative, then could not the same procedure beadopted also in respect of vehicles owned by accused persons?4.If secondary evidence is permitted to be read in lieu ofproduction and marking of vehicles, can return of vehicle be absoluteand not merely by way of interim custody in cases where there is nodispute regards ownership? Would doing so, trample upon powers ofcourt to direct confiscation of the conclusion at proceedings underSection 452 Cr.P.C.? Section 452 Cr.P.C. reads as follows:"452. Order for disposal of property at conclusion oftrial.- (1) When an inquiry or trial in any CriminalCourt is concluded, the court may make such order as itthinks fit for the disposal, by destruction, confiscationor delivery to any person claiming to be entitled topossession thereof or otherwise, of any property or https://hcservices.ecourts.gov.in/hcservices/ document produced before it or in its custody, orregarding which any offence appears to have beencommitted, or which has been used for the commission ofany offence. (2) An order may be made under sub-section (1) for thedelivery of any property to any person claiming to beentitled to the possession thereof, without any conditionor on condition that he executes a bond with or withoutsureties, to the satisfaction of the court, engaging torestore such property to the court if the order madeunder subsection (1) is modified or set aside on appealor revision.(3) A Court of Session may, instead of itself making anorder under sub-section (1), direct the property to bedelivered to the Chief Judicial Magistrate, who shallthereupon deal with it in the manner provided insections 457, 458 and 459.(4) Except where the property is livestock or is subjectto speedy and natural decay, or where a bond has beenexecuted in pursuance of sub-section (2), an order madeunder sub-section (1) shall not be carried out for twomonths, or when an appeal is presented, until suchappeal has been disposed of.(5) In this section, the term "property" includes, inthe case of property regarding which an offence appearsto have been committed, not only such property as hasbeen originally in the possession or under the controlof any party, but also any property into or for whichthe same may have been converted or exchanged, andanything acquired by such conversion or exchange,whether immediately or otherwise.5.This court first would observe that the power ofconfiscation provided in section 452 Cr.P.C is not meant to be usedas an exercise of penal power. Confiscation is not to be ordered as ameasure of punishment. In the Indian penal code as also other penalenactments punishment is prescribed for specific offences. Where,besides punishment, confiscation of vehicle used/involved incommission of offence is contemplated, the particular enactments,inform a particular procedure therefor. For instance, such provisionsare to be found in the Essential Commodities Act, 1955 and the TamilNadu Prohibition Act, 1937. Similarly, where property has beenacquired through proceeds of crime, confiscation thereof specificallyis provided for. For instance, see the Tamil Nadu Protection ofInterests of Depositors (In Financial Establishments) Act, 1997.Measures for recovery of proceeds of crime also are to be found inthe Criminal Law Amendment Ordinance, 1944. For purposes of https://hcservices.ecourts.gov.in/hcservices/ illustration, we will take it that an accused stands convicted foroffence of murder. He would be sentenced to death or lifeimprisonment. Once he stands so sentenced, it would be most improperto confiscate his vehicle used/involved in the commission of offence,merely because of offence of murder stands established against him.Doing so, in the absence of any specific provision of law providingfor confiscation of the vehicle, would amount to imposing a secondpunishment, not having the sanction of law. We are constrained toobserve as above, since in many a case involving the commission ofmajor criminal offences, we find that the trial courts routinelyorder confiscation of property used/involved, even without anyenquiry. Property, normally should be returned to its owner, even ifsuch person be an accused in the case. This would not amount toaffording a premium to the wrong doer but would avoid punishment notcontemplated in law. Therefore, the power of confiscation provided inSection 452 Cr.P.C, is only residual. It is to be resorted to in theabsence of there being any proper person claiming the property. Thiscourt would quote with approval the observations of the AllahabadHigh Court in decision reported in 1962 (1) Cri.L.J. 243 (Vol.64.C.N.85) = AIR 1962 ALLAHABAD 153 (V 49 C 47) (State and another v.Jagannath Singhal):3. Coming to the merits it may be stated at theoutset that it is the admitted case of the partiesthat no order under Section 517, Cri. P. C., waspassed by the criminal court which convicted thedirectors as also some of the employees of theBankers under Section 420, I. P. C. Consequentlythere is no direction of the criminal court withregard to the sums of money seized by the policefrom the Bankers, The question for determination,therefore, is whether in these circumstances themoney in the hands of the Government will be deemedto be their money or that of the Bankers or that ofthe depositors. Mr. Shambhu Prasad on behalf of theState has made what I may call to be a tall claim.His submission is that apart from the provisions ofthe Cri. P. C, or statutes or Statutory ordersdealing with matters relating to forfeiture ofproperty the state has a general power to forfeitto itself all the property which has been obtainedby a convicted person by committing a criminaloffence. He has, however, not been able to pointout the source of the power either by means ofshowing any statutory provision or a written textor decided case. Even the State can only act inaccordance with the law. It is trite saying thatlaw binds both the rulers and the subjects.Therefore there can be no forfeiture of propertyexcept under the law. That is so all the more inour country because Article 19 of the Constitutionguarantees to every Indian citizen the right to https://hcservices.ecourts.gov.in/hcservices/ enjoy his property subject only to reasonablerestrictions and Article 31 provides that therewill be no acquisition of property except asprovided by law. There is thus to my mind no scopefor the submission that the State has any generalor inherent power to forfeit] property acquired bycommitting a crime or used in the commission of acrime, It is true that the State has the right ofeminent domain to acquire for public purposes theproperty belonging to a subject but in accordancewith the law and after paying compensation.Similarly where a person dies leaving property andthere is a total failure of heirs the law ofescheat intervenes vesting the property in theState on the ground that private ownership does notexist and the State becomes the owner as ultimateLord (see Collector of Masuliputam v Cavaly VencataNarrainapah, 8 Moo Ind App 500 at p. 525 (PC)). Itis also well established that property by which orfor which an offence has been committed hasultimately to go to its real Owner and an orderpassed by a criminal court under Section 517 CM. P.C., does not settle any rights nor confers anytitle. It only empowers the criminal court todispose of the property in a Summary manner (seeIbrahim Rahamatullah v. Emperor, AIR 1947 Nag 33).The matter can finally be decided only by a civilcourt. Even in cases where the criminal court doesnot pass any order with regard to a property withwhich or in respect of which an offence has beencommitted, the civil court of competentjurisdiction can pass a decree in respect o thatproperty in favour of its real owner.6.Once we reach the above conclusion, it would be seen thatin directing return of vehicles, even to accused persons, in themanner contemplated in the decisions of the apex court of SunderbhaiAmbalal Desai v. State of Gujarat, (2003 (1) CTC 175) and GeneralInsurance Council and others v. State of Andhra Pradesh and others,(2010) 6 SCC 768, no trampling of powers bestowed upon the trialcourts under section 452 Cr.P.C is involved. Therefore, it would befit and proper to deal with applications seeking return of vehicleswithout being clouded with the vision of the claimant being anaccused. It would not be out of place to inform that section 451Cr.P.C. which provides for custody and disposal of property pendingtrial also provides for disposal of property by sale or otherwisewhere it is otherwise expedient so to do. It is such expediency, thathas led to the decisions of the apex court in the above referredcases. This court in the case of Sundaram Finance Ltd., V. The Stateof Tamil Nadu, 2011 (1) MWN (Cr.) 437 reproduced the salientparagraphs in the judgment of the Hon'ble Apex Court in SunderbhaiAmbalal Desai v. State of Gujarat (cited supra) which read as https://hcservices.ecourts.gov.in/hcservices/ follows:'3. At the time of the hearing of these matters, learned counselfor the parties submitted that various articles are kept at thepolice station for a long period by not adhering to theprocedure prescribed under CrPC, which creates difficulties forkeeping them in safe custody. Finally, the sufferers are eitherthe State exchequer or the citizens whose articles are kept insuch custody. It is submitted that speedier procedure isrequired to be evolved either by the court or under the rulesfor disposal of mudammal articles which are kept at variouspolice stations as most of the police stations are flooded withseized articles. It is, therefore, submitted that directions begiven so that burden of the courts as well as at the policestations can, to some extent, be reduced and that there may notbe any scope for misappropriation or of replacement of valuablearticles by spurious articles.4. Learned counsel further referred to the relevant Sections 451and 457 of the Code of Criminal Procedure, which read thus:451. Order for custody and disposal of property pending trial incertain cases.When any property is produced before any criminalcourt during any inquiry or trial, the court may make such orderas it thinks fit for the proper custody of such property pendingthe conclusion of the inquiry or trial, and, if the property issubject to speedy and natural decay, or if it is otherwiseexpedient so to do, the court may, after recording such evidenceas it thinks necessary, order it to be sold or otherwisedisposed of. Explanation. For the purposes of this section,property includes(a) property of any kind or document which is produced beforethe court or which is in its custody.(b) any property regarding which an offence appears to have beencommitted or which appears to have been used for the commissionof any offence.457. Procedure by police upon seizure of property.(1) Whenever the seizure of property by any police officer isreported to a Magistrate under the provisions of this Code, andsuch property is not produced before a criminal court during aninquiry or trial, the Magistrate may make such order as hethinks fit respecting the disposal of such property or thedelivery of such property to the person entitled to thepossession thereof, or if such person cannot be ascertained,respecting the custody and production of such property. (2) Ifthe person so entitled is known, the Magistrate may order theproperty to be delivered to him on such conditions (if any) asthe Magistrate thinks fit and if such person is unknown, theMagistrate may detain it and shall, in such case, issue a https://hcservices.ecourts.gov.in/hcservices/ proclamation specifying the articles of which such propertyconsists, and requiring any person who may have a claim thereto,to appear before him and establish his claim within six monthsfrom the date of such proclamation.5. Section 451 clearly empowers the court to pass appropriateorders with regard to such property, such as:(1) for the proper custody pending conclusion of the inquiry ortrial;(2) to order it to be sold or otherwise disposed of, afterrecording such evidence as it thinks necessary;(3) if the property is subject to speedy and natural decay, todispose of the same.6. It is submitted that despite wide powers, proper orders arenot passed by the courts. It is also pointed out that in theState of Gujarat there is Gujarat Police Manual for disposal andcustody of such articles. As per the manual also, variouscirculars are issued for maintenance of proper registers forkeeping the mudammal articles in safe custody.7. In our view, the powers under Section 451 CrPC should beexercised expeditiously and judiciously. It would serve variouspurposes, namely:1. owner of the article would not suffer because of itsremaining unused or by its misappropriation;2. court or the police would not be required to keep the articlein safe custody;3. if the proper panchnama before handing over possession of thearticle is prepared, that can be used in evidence instead of itsproduction before the court during the trial. If necessary,evidence could also be recorded describing the nature of theproperty in detail; and4. this jurisdiction of the court to record evidence should beexercised promptly so that there may not be further chance oftampering with the articles.8. The question of proper custody of the seized article israised in a number of matters. In Basavva Kom Dyamangouda Patilv. State of Mysore 1 this Court dealt with a case where theseized articles were not available for being returned to thecomplainant. In that case, the recovered ornaments were kept ina trunk in the police station and later it was found missing,the question was with regard to payment of those articles. Inthat context, the Court observed as under: 4. The object and https://hcservices.ecourts.gov.in/hcservices/ scheme of the various provisions of the Code appear to be thatwhere the property which has been the subject-matter of anoffence is seized by the police it ought not to be retained inthe custody of the court or of the police for any time longerthan what is absolutely necessary. As the seizure of theproperty by the police amounts to a clear entrustment of theproperty to a government servant, the idea is that the propertyshould be restored to the original owner after the necessity toretain it ceases. It is manifest that there may be two stageswhen the property may be returned to the owner. In the firstplace it may be returned during any inquiry or trial. This mayparticularly be necessary where the property concerned issubject to speedy or natural decay. There may be othercompelling reasons also which may justify the disposal of theproperty to the owner or otherwise in the interest of justice.The High Court and the Sessions Judge proceeded on the footingthat one of the essential requirements of the Code is that thearticles concerned must be produced before the court or shouldbe in its custody. The object of the Code seems to be that anyproperty which is in the control of the court either directly orindirectly should be disposed of by the court and a just andproper order should be passed by the court regarding itsdisposal. In a criminal case, the police always acts under thedirect control of the court and has to take orders from it atevery stage of an inquiry or trial. In this broad sense,therefore, the court exercises an overall control on the actionsof the police officers in every case where it has takencognizance.9. The Court further observed that where the property is stolen,lost or destroyed and there is no prima facie defence made outthat the State or its officers had taken due care and caution toprotect the property, the Magistrate may, in an appropriatecase, where the ends of justice so require, order payment of thevalue of the property.10. To avoid such a situation, in our view, powers under Section451 CrPC should be exercised promptly and at the earliest.15. Learned Senior Counsel Mr Dholakia, appearing for the Stateof Gujarat further submitted that at present in the policestation premises, a number of vehicles are kept unattended andvehicles become junk day by day. It is his contention thatappropriate directions should be given to the Magistrates whoare dealing with such questions to hand over such vehicles totheir owners or to the person from whom the said vehicles areseized by taking appropriate bond and guarantee for the returnof the said vehicles if required by the court at any point oftime.16. However, the learned counsel appearing for the petitionerssubmitted that this question of handing over the vehicle to the https://hcservices.ecourts.gov.in/hcservices/ person from whom it is seized or to its true owner is always amatter of litigation and a lot of arguments are advanced by thepersons concerned.17. In our view, whatever be the situation, it is of no use tokeep such seized vehicles at the police stations for a longperiod. It is for the Magistrate to pass appropriate ordersimmediately by taking appropriate bond and guarantee as well assecurity for return of the said vehicles, if required at anypoint of time. This can be done pending hearing of applicationsfor 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 suchvehicle may be ordered to be auctioned by the court. If the saidvehicle is insured with the insurance company then the insurancecompany be informed by the court to take possession of thevehicle which is not claimed by the owner or a third person. Ifthe insurance company fails to take possession, the vehicles maybe sold as per the direction of the court. The court would passsuch order within a period of six months from the date ofproduction of the said vehicle before the court. In any case,before handing over possession of such vehicles, appropriatephotographs of the said vehicle should be taken and detailedpanchnama should be prepared.24. In our view, no further directions are required to be givenin these matters. However, it is made clear that in case whereaccused disputes that he is not involved in the alleged incidentand no article was found from him then such endorsement be takenon the photograph. Further with regard to the vehicle also, itis made clear that there may not be any necessity of producingthe vehicle before the Court and the Seizure Report may besufficient. The Special Leave Petitions are disposed ofaccordingly.'7.In General Insurance Council and others v. State of AndhraPradesh and others, (2010) 6 SCC 768, the Hon'ble Apex Court aftertaking note of the directions contained in Sunderbhai Ambalal Desaiv. State of Gujarat observed and further directed as follows:“8. Since it appeared to the petitioners that despite thesaid directions, the requirements of the petitioners werenot being fulfilled, they were constrained to file WP (C)No. 282 of 2007 titled General Insurance Council v. Stateof A.P.2, decided on 9-7-2007 by a coordinate Bench of twolearned Judges of this Court.9. In this second round of litigation before this Court, adirection was sought with regard to compliance with Section158(6) of the Motor Vehicles Act, 1988 (in short “the MV https://hcservices.ecourts.gov.in/hcservices/ Act”) and Rule 150 of the Central Motor Vehicles Rules,1989 (in short “the Rules”). This Court in the said matterafter considering the issue came to the followingconclusion: (General Insurance Council case2, SCC p. 358,paras 9-11)“9. Since there is a mandatory requirement to actin the manner provided in Section 158(6) there isno justifiable reason as to why the requirementis not being followed.10. It is, therefore, directed that all the StateGovernments and the Union Territories shallinstruct, if not already done, all policeofficers concerned about the need to comply withthe requirement of Section 158(6) keeping in viewthe requirement indicated in Rule 150 and in Form54. Periodical checking shall be done by theInspector General of Police concerned to ensurethat the requirements are being complied with. Incase there is non-compliance, appropriate actionshall be taken against the erring officials. TheDepartment of Road Transport and Highways shallmake periodical verification to ensure thataction is being taken and in case of anydeviation immediately bring the same to thenotice of the State Governments/Union Territoriesconcerned so that necessary action can be takenagainst the officials concerned.11. The writ petition is accordingly disposedof.”10. Despite the aforesaid directions having been issued bythis Court in the aforesaid two matters, grievance is stillbeing made by the petitioners, that the police,investigating agency and the prosecuting agency are nottaking appropriate and adequate steps for compliance withthe aforesaid directions issued by this Court. Therefore, aneed has arisen for giving further directions so as toclear the clouds and iron out the creases.11. Notice of the said petition was issued to all theStates and Union Territories. Almost all the States havecontended that they have already issued necessaryguidelines and directions for full and complete compliancewith the provisions contained in Sections 451 and 457 ofthe Code as elaborated in Sunderbhai Ambalal Desai1 as alsounder Section 158(6) of the MV Act and Rule 159 of theRules as directed in General Insurance Council case2. Thus,in one voice, they have contended that there would not beany difficulty in compliance with the directions that may https://hcservices.ecourts.gov.in/hcservices/ be issued in furtherance of achieving the object asdirected by this Court. Thus, in our view, there appears tobe consensus in this matter.12. The petitioners have submitted that information withregard to all insured vehicles in the country is availablewith the Insurance Information Bureau created by IRDA. Thisinformation could be utilised to assist the police toidentify the insurer of the vehicle. Upon recovery of thevehicle in police station, insurer/complainant can call anall-India toll free number to be provided by the InsuranceInformation Bureau to give the information of the recoveredvehicle. Thereafter, the insured vehicle database would besearched to identify the respective insurer. Upon suchidentification, this information can be communicated to therespective insurer and police stations concerned fornecessary coordination.13. In our considered opinion, the aforesaid information isrequired to be utilised and followed scrupulously and hasto be given positively as and when asked for by theinsurer. We also feel, it is necessary that in addition tothe directions issued by this Court in Sunderbhai AmbalalDesai1 considering the mandate of Section 451 read withSection 457 of the Code, the following further directionswith regard to seized vehicles are required to be given:“(A) Insurer may be permitted to move a separateapplication for release of the recovered vehicleas soon as it is informed of such recovery beforethe jurisdictional court. Ordinarily, releaseshall be made within a period of 30 days from thedate of the application. The necessaryphotographs may be taken duly authenticated andcertified, and a detailed panchnama may beprepared before such release.(B) The photographs so taken may be used assecondary evidence during trial. Hence, physicalproduction of the vehicle may be dispensed with.(C) Insurer would submit an undertaking/guaranteeto remit the proceeds from the sale/auction ofthe vehicle conducted by the Insurance Company inthe event that the Magistrate finally adjudicatesthat the rightful ownership of the vehicle doesnot vest with the insurer. Theundertaking/guarantee would be furnished at thetime of release of the vehicle, pursuant to theapplication for release of the recovered vehicle.Insistence on personal bonds may be dispensedwith looking to the corporate structure of the https://hcservices.ecourts.gov.in/hcservices/ insurer.” 14. It is a matter of common knowledge that as and whenvehicles are seized and kept in various police stations,not only do they occupy substantial space in the policestations but upon being kept in open, are also prone tofast natural decay on account of weather conditions. Even agood maintained vehicle loses its roadworthiness if it iskept stationary in the police station for more than fifteendays. Apart from the above, it is also a matter of commonknowledge that several valuable and costly parts of thesaid vehicles are either stolen or are cannibalised so thatthe vehicles become unworthy of being driven on road. Toavoid all this, apart from the aforesaid directions issuedhereinabove, we direct that all the State Governments/UnionTerritories/Director Generals of Police shall ensure macroimplementation of the statutory provisions and furtherdirect that the activities of each and every policestation, especially with regard to disposal of the seizedvehicles be taken care of by the Inspector General ofPolice of the division/Commissioner of Police concerned ofthe cities/Superintendent of Police concerned of thedistrict concerned.15. In case any non-compliance is reported either by thepetitioners or by any of the aggrieved party, then needlessto say, we would be constrained to take a serious view ofthe matter against an erring officer who would be dealtwith iron hands. With the aforesaid directions, this writpetition stands finally disposed of.”8.This court in the case of Sundaram Finance Ltd., V. TheState of Tamil Nadu, 2011 (1) MWN (Cr.) 437 observed as follows:“11. This Court is of the firm opinion that return ofvehicles and permission for sale thereof should be thegeneral norm rather than the exception it is today. Theclear dictate of the Hon'ble Apex Court in this regard isfollowed more in the breach than in observance. Given thefacilities of the modern day, there hardly is any scope tothink that evidence relating to vehicles cannot be held inaltered form. Causing of photographs and resort tovideography, together with recording such evidence asbefits a particular case would well serve the purpose. Incases where return of vehicles is sought and the claimtherefor is highly contested, resort to sale of vehicle andcredit of the proceeds in fixed deposits pending disposalof the case would be to the common good. None gain when themere shell or the remnants of the vehicle are returned tothe person entitled thereto, after completion of the trial.It would be no surprise to find that several vehicles have https://hcservices.ecourts.gov.in/hcservices/ not been so much as claimed after completion of trial,because of the worthless state they have been reduced to.It is but natural to expect that a person eventuallyentitled would rather have the sale proceeds together withinterest, than nothing at all.”9.In the light of the above it is expected that the Courtsbelow will make all out efforts to avoid holding of vehicles atCourts and Police Stations and dispose of petitions seeking return ofvehicles in such a manner as is found most feasible in the facts of aparticular case. The same may be by ordering of return in favour ofthe owner or insurer or even by sale and deposit of the proceeds.10.Both the Criminal Revision Petitions shall stand allowed.The Courts below shall effect return of the vehicles to the revisionpetitioners after causing necessary photographs and panchnama. Thepanchnama shall be drawn up by an Officer of the Court in thepresence of two panchayatdhars and in the immediate presence of thePresiding Officer of the Court.11. The Registry is directed to circulate a copy of this orderto all Sessions / Metropolitan/ Judicial Magistrate Courts. Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarsrmTo1.The District Munsif-cum-Judicial Magistrate, Omalur.2.The Judicial Magistrate-II, Krishnagiri.3.The Public Prosecutor,High Court,Madras.+1cc to M/s.M.Seelvam, Advocate Sr 7351TS(CO)km/27.2.Crl.R.C.Nos.1766 and 1699 of 2011