Dr. Dhananjaya Y. Chandrachud, J.
A First Information Report was lodged on 4 February 1992
alleging that a theft of 10,285 kilograms of copper wires and
62 lead sleeves of a value of Rs. 8,31,300/- had taken place
from the godown of the erstwhile Telecom Department at Gandhi
Nagar in Ernakulam. The accused had allegedly sold the material
to the first respondent. The first respondent is the proprietor
of an entity by the name of Surya Metals.
On 21 February 1992, the Circle Inspector of Police,
Ernakulam Police Station seized 5,060 kgs of copper lead alloy
moulds from the first respondent.
By an order dated 21 February 1992, interim custody of
the seized alloy moulds was handed over by the Magistrate to
SUSHIL KUMARRAKHEJA the appellant in pursuance of the provisions of Section 451 of
the Code of Criminal Procedure, 1973 (“CrPC”).
Pursuant to the investigation, Criminal case No. 433 of
1993 was registered on the file of the Judicial Magistrate
First Class, Ernakulam for offences punishable under Sections
457, 381, 461, 462 and 411 read with Section 34 of the Indian
Penal Code, 1860. The first respondent was cited as a witness
(CW-10).
By a judgment and order dated 30 April 1999, the Trial
Court acquitted all the four accused of the offences with which
they were charged. After the acquittal, the first respondent
filed an application, being Criminal Miscellaneous Petition No.
5076 of 1999 (in C.C. No. 433/1999) on the file of the JMFC
under Section 452 of the CrPC seeking release of the alloy
moulds.
The judgment of acquittal was assailed by the State in
Criminal Appeal No. 730 of 1999. The application for release
of the property filed by the first respondent was kept in
abeyance. On 19 January 2006, the appeal filed by the State
against the order of acquittal was dismissed.
The application filed by the first respondent for release
of the seized material was disposed of by the Judicial
Magistrate on 31 August 2006. The Magistrate held that though
interim custody was given to the appellant (the de-facto
complainant) on 22 February 1992, the first respondent filed an
application under Section 452 only on 21 June 1999. While
declining to grant custody of the seized material, the trial
court relegated the first respondent to prove its title before
a competent civil court. By a judgment dated 13 March 2007 the
Sessions Court affirmed the finding of the learned Magistrate
and held that the first respondent had neither made a claim in
respect of the seized goods until 1999, nor was there any
clinching evidence to indicate that the material belonged to
it. Hence, the direction that it was for the first respondent
to assert its title and prove it before the civil court was
confirmed. The first respondent assailed the above order of the
Sessions Court in a criminal revision before the High Court.
By its judgment dated 21 February 2008, the High Court
reversed the decision of the Sessions Court and held that the
appellant had not raised a claim over the seized articles. The
High Court held that since possession of the goods was taken
over from the first respondent when they were seized, it should
be restored to the first respondent in view of the decision of
this Court in N. Madhavan Vs. State of Kerala 1. The High Court
held that though interim custody was handed over to the
appellant, it did not assert any right over the property, nor
did it deny the right or title of the first respondent and
hence, there was no reason to relegate the first respondent to
a civil court. The Judicial Magistrate was directed to take
steps to hand over the property to the first respondent.
Leave was granted in these proceedings on 27 January
2009. The order of the High Court was stayed during the
pendency of these proceedings.
Learned counsel appearing on behalf of the appellant
submits that the Magistrate had carefully evaluated the facts
[(1979) 4 SCC 1]
of the case and had noticed that it was the consistent case of
BSNL, through its witness PW-3, who was the Divisional Engineer
(Telecom) that it had suffered a theft of the material obtained
from the General Manager (Stores), Calcutta. Moreover, the
material was of a nature which could not be purchased from the
open market. The officers of the Telecom Department, PWs 1, 2,
4 and 5 had identified the material as the stolen goods.
Learned counsel submitted that until the disposal of the
criminal case, no steps were taken by the first respondent to
assert its alleged claim of title. On the contrary, possession
of the goods was handed over to BSNL on 21 February 1992.
Insofar as the decision of this Court in Madhavan (supra)
is concerned, it has been submitted that the principle that the
goods should be restored to the person from whom they have been
seized is a principle which is ordinarily applied. However, the
title of the original owner from whose custody the theft
occurred cannot be set at naught by restoring possession in a
case where the person from whose custody the goods have been
seized does not have title. Learned counsel submitted that,
BSNL was not a party to any of the proceedings including those
which culminated in the impugned order of the High Court.
On the other hand, learned counsel appearing on behalf of
the respondent submitted that the principle of law which has
been laid down in the judgment in Madhavan (supra) is clearly
indicative of the governing position in law. Learned counsel
also relied upon the decision of a three Judge Bench of this
Court in Pushkar Singh vs. State of Madhya Bharat & Ors. 2 in
which it was held that upon the acquittal of the accused, money
seized from the accused and belonging to him must be returned
to the accused and not to the complainant. In the
circumstances, it was submitted that the view of the High Court
is consistent with the position in law and no interference is
warranted in the appeal.
Section 451 of the CrPC forms part of Chapter XXXIV of
the CrPC, which deals with the disposal of property. Section
451 provides as follows:-
“451. Order for custody and disposal of
property pending trial in certain cases. When
any property is produced before any Criminal
Court during any inquiry or trial, the Court
may make such order as it thinks fit for the
proper custody of such property pending the
conclusion of the inquiry or trial, and, if the
property is subject to speedy and natural
decay, or if it is otherwise expedient so to
do, the Court may, after 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.”
Section 451 empowers the court before which the property
is produced during an inquiry or trial to make such order as it
AIR 1953 SC 508
thinks fit or for its proper custody pending the disposal of
the inquiry or trial. Section 452 provides for the disposal of
the property at the conclusion of the trial.
Sub-sections(1) and (2) of Section 452 provide as
follows:-
“452. Order for disposal of property at
conclusion of trial.
(1) When an inquiry or trial in any Criminal
Court is concluded, the Court may make such
order as it thinks fit for the disposal, by
destruction, confiscation or delivery to any
person claiming to be entitle to possession
thereof or otherwise, of any property or
document produced before it or in its custody,
or regarding which any offence appears to have
been committed, or which has been used for the
commission of any offence.
(2) An order may be made under sub- section (1)
for the delivery of any property to any person
claiming to be entitled to the possession
thereof, without any condition or on condition
that he executes a bond, with or without
sureties, to the satisfaction of the Court,
engaging to restore such property to the Court
if the order made under sub- section (1) is
modified or set aside on appeal or revision.”
In terms of sub-section (1) of Section 452, when an
inquiry or trial before a criminal court has been concluded,
the court is empowered to pass an appropriate order for its
disposal by destruction, confiscation or delivery to any person
claiming to be entitled to the possession thereof or otherwise.
Entitlement postulates a right. The function which the Court
exercises under Section 452 is of a judicial nature. In making
that order, the court must undoubtedly have due regard to the
entitlement claimed by the person who seeks the possession of
the property.
We are unable to subscribe to the submission which has
been urged on behalf of the first respondent that when it makes
an order under Section 452, the court is merely required to
determine the source from which the property was seized.
Indeed, if this construction were to be placed, it would mean
that the right of a person who claims title to the property
would be subordinate to the claim of a person from whose
possession the property was seized. A claim of title to the
goods which have been seized is a relevant consideration while
passing an order under Section 452. Where there are conflicting
claims of entitlement to the property, the Magistrate may deal
with them or, where it is found that the rival claims need to
be resolved after an evidentiary trial, relegate the
conflicting claimants to prove their rights and entitlements
before a competent court.
Indeed this is the basis of the decision of this Court in
Madhavan (supra). In that case, the accused was charged for
an offence under Section 302 IPC for shooting a person dead
with a licensed gun. He was acquitted of the charge of having
committed the offence on the ground that he had exercised his
right of self-defence. Yet the trial court had confiscated the
weapon to the government. This Court set aside the judgment of
the High Court which had upheld the view taken by the Sessions
Court. The principle which has been laid down by this Court
is as follows:-
“The words “may make such order as it thinks
fit” in the section, vest the court with a
discretion to dispose of the property in any
of the three modes specified in the section.
But the exercise of such discretion is
inherently judicial function. The choice of
the mode or manner of disposal is not to be
made arbitrarily, but judicially in accordance
with the sound principles founded on reason
and justice, keeping in view the class and
nature of the property and the material before
it. One of such well recognised principles
is that when after an inquiry or trial the
accused is discharged or acquitted, the court
should normally restore the property of class
(a) or (b) to the person from whose custody it
was taken. Departure from this salutary rule
of practice is not to be lightly made, when
there is no dispute or doubt – as in the
instant case – that the property in question
was seized from the custody of such accused
and belonged to him.”
The above observations indicate that the authority which
is entrusted to the Court under Section 452 of the CrPC
(equivalent to Section 517 of the Code of 1898) is judicial in
nature. As a judicial power, it has to be exercised for valid
reasons keeping in view the class and nature of the property
and the material before the Court. Normally the Court would,
following the discharge or acquittal of the accused, restore
the property to the person from whose custody it was taken. A
departure from this rule of practice is not lightly made when
there is no dispute or doubt that the property which was seized
from the custody of the accused belongs to him. These
observations in the decision of this Court in Madhavan (supra)
clearly indicate that ordinarily the person from whom the
property was seized would be entitled to an order under Section
452, when there is no dispute or doubt that the property
belongs to him. It is only when the property belongs to the
person from whom it was seized that such an order can be
passed.
Where a claim is made before the court that the property
does not belong to the person from whom it was seized, Section
452 does not mandate that its custody should be handed over to
the person from whose possession it was seized, overriding the
claim of genuine title which is asserted on behalf of a third
party. It must be noted that in Madhavan case (supra), there
was no dispute that the weapon of offence belonged to the
accused from whom it had been seized.
The decision in Pushkar Singh (supra) involved
prosecution for offences under Sections 449 and 372 of the
Gwalior Penal Code. The Magistrate held that no case was
established against the accused and the money which was
recovered from his house belonged to him. There was a
specific finding that the money did not belong to the
complainant. The Sessions Judge dismissed the revision by the
complainant. The High Court was moved for the return of the
amount to the complainant and not to the accused, which
application was allowed. This Court held that in view of the
clear finding of fact by the Magistrate to the effect that no
offence was committed in respect of the sum of money and that
it did not belong to the complainant, followed by the acquittal
of the accused, the amount recovered had to be delivered to the
accused. Hence, the view of this Court was that following the
acquittal of the accused and since there was a specific finding
that the money belonged to him, an order for return of the
money to the complainant could not be countenanced .
Learned counsel appearing on behalf of the first
respondent, however, submits that in the present case, the
appellant did not move an application under Section 452 and
hence an order cannot be passed in terms of that provision for
the restoration of legal possession to the appellant. The
issue before the Court, however, is somewhat different. The
basic issue is whether the first respondent who moved an
application for the release of the seized property to him under
Section 452 has established a claim of entitlement.
Prima facie, at this stage, we are unable to find any
reasonable basis in the record for handing over custody of the
seized goods to the respondent. During the course of the
hearing, we requested learned counsel appearing on behalf of
the first respondent to indicate at least, prima facie, some
basis for the claim of title in the acquisition of the goods or
the payment which has been made for acquiring them. As we note
from the judgment of the trial court, the claimant had produced
certain invoices between 8 February and 20 February 1992,
recovery having been effected on 21 February 1992. The
Magistrate noted that no cash receipts were produced by the
first respondent and though vouchers were produced by CW-10,
they did not prove that they were for the purchase of the
seized goods. Nothing at all has been shown in response to our
query.
In our view, the claim which has been made by the first
respondent to the title to the goods is seriously in dispute.
Hence it was but appropriate and proper that such a claim be
agitated before the competent civil forum. The view of the
Magistrate was correct. In the absence of such an
adjudication, the custody of the goods, which have been seized,
should continue to be with the appellant. In passing this
order, we are also guided by the fact that as noticed in the
order of the Magistrate, the appellant had indicated through
its evidence that the goods were stolen from its godown and
were of a nature which were not capable of being acquired from
the open market.
The High Court was in error in directing return of the
goods to the first respondent. The first respondent must, in
our view, be relegated to the civil court for establishing its
claim and title to the goods as observed in the order passed by
the Magistrate, which was affirmed by the Sessions court.
The goods were made over to the appellant as far back as
on 21 February 1992. Nearly 26 years have elapsed since then.
We see no reason or justification to require the appellant to
hold these goods in its custody indefinitely thereby occupying
valuable space and leaving productive resources unutilised.
The appellant shall preserve a sample of the goods in question,
should it be required for adjudication before the competent
civil court. Subject to this, we grant permission to the
appellant to sell the goods by auction and to maintain an
account of the money which has been realised from the sale.
The amount which is realised by the appellant, shall
abide by such directions as may be passed by the competent
civil court in the suit which may be instituted by the first
respondent.
The criminal appeal is, accordingly, disposed of.
(M.R. SHAH) NEW DELHI, December 13, 2018
Criminal Appeal No(s). 170/2009
BHARAT SANCHAR NIGAM LIMITED Appellant(s)
VERSUS
SURYANARAYANAN & ANR. Respondent(s)
Date : 13-12-2018 This appeal was called on for hearing today.
CORAM :
For Appellant(s)
Mr. R.D. Agarwal, Adv.
Mr. Pavan Kumar, AOR
For Respondent(s)
Mr. G. Prakash, AOR
Mr. Jishnu M.L., Adv.
Mrs. Priyanka Prakash, Adv.
Mrs. Beena Prakash, Adv.
Mr. Sreegesh M.K., Adv.
Mr. K. R. Sasiprabhu, AOR
UPON hearing the counsel the Court made the following
O R D E R
The criminal appeal is disposed of in terms of the signed
reportable judgment.
Pending application(s), if any, shall stand disposed of.
(Signed reportable judgment is placed on the file)