Disposal of Property or Documents during Trial

Disposal of property or documents by the criminal court during inquiry or trial is a crucial issue in some cases.

The legal provision relating to it is well provided for in the Chapter 34 consisting of Sections 451 to 459 of the Criminal Procedure Code, 1973 (CrPC).

The chapter applies to four categories of objects

The chapter specifically deals with disposal of the following four categories of property or document

• of which an offence has been committed
• which has been used for committing an offence
• which has been produced before the court
• which is in the custody of the court

The court can issue orders, including interim ones, for the proper custody and disposal of property or documents which fall within any one of the above categories.

All documents or articles produced before any court for the purpose of evidence marked as documentary exhibits or material objects come under the term property. They can be disposed of as laid down in these sections. 

Types of property & methods of disposal

The items of property that the police seize in a criminal investigation can be categorized into following three kinds. They are:-

• Articles found upon search of a person arrested
• Property allegedly suspected to have been stolen
• Property found under suspicious circumstances of commission of an offence

Similarly, the methods for disposal of the property that a court can follow are numerous. They are by

• destruction,
• confiscation,
• delivery to any person claiming to be entitled to possession of the property, restoration to person dispossessed etc.

The court has unfettered discretion in taking appropriate decision in regard to disposal of property while considering each situation which in many a case be unique.

Interim custody of property

The Section 451 of the CrPC deals with interim disposal of property before finally concluding the case.

The court can make orders for interim custody of the property in respect of both:-

• The property produced before the court during inquiry or trial and,
• The property regarding which an offence appears to have been committed or which appears to have been used for commission of offence.

The court however has no jurisdiction to direct disposal of any property without producing it before the court in either physical or symbolic form. The symbolic production is done by filing records or reports about such seizure.

If the seizure of a property is reported to the court, the Magistrate gets the jurisdiction to dispose of it as law prescribes. If anybody brings before the court that a particular property is involved in a case the Magistrate has the obligation to hear him and should deal with it.

The court must determine whether such material would be given to a party or not, for the safe interim custody during the inquiry or trial based on the facts and circumstances of each case.  A temporary custodian of the property in fact acts as a representative of the court. Temporary custody is opted for when it becomes physically quite impossible to produce it before the court.

The court detaining a vehicle, which is involved in a less serious offence, in the custody for long is improper as many case laws say. Then the vehicle can be released after obtaining an undertaking form its possessor that the vehicle will be produced before the court in the same condition whenever it is required. Confiscation of a vehicle under this Chapter in fact is not a penal action.

However the property produced before an executive authority like District Collector under any special laws cannot be dealt with by the court under this chapter.

An immovable property which is seized or sealed by the police during the investigation becomes cutodia legis (means ‘in the custody of the law’ or ‘seized under legal process’) on Magistrate taking cognizance of the offence on the police report.

No guidelines can be issued

Regarding the issue of giving custody of a disputed property, it is inadvisable to provide any broad proposition of law either in any law or in case laws.

The trial court must decide the issue of custody in each case based on its facts and circumstances. The nature of property and the law relating to its use are important considerations while making an order in regard to the interim custody of the property in question.

Property liable to be damaged

When any property is liable to be damaged then the court not taking enough precautionary measure for production of it and its safe custody as required by law is an erroneous exercise of judicial discretion. Magistrate has ample competency to dispose of any perishable property by sale.

The order under Section 451 of the CrPC is an interlocutory one in nature but not final. This is because it needs to be revised in some occasions depending on the circumstances. Therefore, a revision petition against such an order is not tenable in practice.

The Section 451 of CrPC is not confined to natural decay alone but extends to other ways of damage which require expedient disposal. If the property is not livestock or something that is amenable to speedy or natural decay, the court order about its disposal shall not be carried out for two months or until disposal of an appeal against the disposal. This provision avoids the early disposal of property before the case comes to finality in its appeal.

What to do at the conclusion of the proceeding

The Section 452 deals with disposal of property after the conclusion of inquiry or trial. The Section applies only when a trial or inquiry is concluded. It however does not apply to an inquiry or trial which is abated due to death of the accused.

Normally, if an accused is acquitted, the court would restore the property to him. But it is not a hard and fast rule. The accused however cannot claim its return as a matter of right. Confiscation of the property is also possible under the section when there is inquiry or trial.

On the other hand if the accused is found guilty the property need not normally be returned to him despite he is the owner of it.

Question of title is to be decided by civil court

A criminal court cannot decide a question of title to property. But if a person takes property by using violence, the criminal court can order return of it to the person from whom it was taken.

When the court orders return of property the affected party should be heard even if no provision is there under Section 452 for issuing a notice.

Innocent buying of stolen property

The court can order payment of money not exceeding its price to person who purchased a stolen property innocently, as per Section 453 of the CrPC.

Appeal by aggrieved persons

The Section 454 of the CrPC confers independent right of appeal by an aggrieved person against orders on disposal of property under Section 452 or 453 CrPC. The aggrieved person need not be the aggrieved one relating to the final judgment but an aggrieved one in the interim issue of disposal of property.

An appeal under Section 454 CrPC  in regard to disposal of property is quite different from an appeal on the final order of the trial proceedings. Both the appeals need to be heard by the same court so as to avoid conflict in judgements. The order of the appellate court for disposal of the property under 452 or 453 CrPC, does not affect the finality of the order of acquittal or conviction in the original case. Disposal of property is a subsidiary matter.

The Sections 451 and 454 confer full discretion on the court for disposal of property. The Section 454 does not mention about a notice to the parties but the aggrieved ones need to be heard so as to ensure natural justice.  The Section 454 (2) gives wide powers to the appellate court to make any further order, such as setting aside the original order or restitution of property, which is just and proper.

Destruction of libellous materials

The Section 455 of the CrPC provides the provision for destruction of libelous and other materials.

Destruction of obscene materials, defamatory documents, adulterated food etc of which a conviction was held, comes under this Section. If some pages of a book are defamatory those pages alone need to be destroyed but not the entire book.

Restoration of immovable property seized by force

The court can issue orders for restoration of immovable property seized by intimidation or physical force.

The powers under the Section 456 can be exercised only when

• A person is convicted for an offence of criminal intimidation and
• Any person has been disposed of any immovable property due to that physical force.

The use of criminal force or intimidation need not be an ingredient in the original offence being proceeded with. But it should be there in the grabbing of the property.

The purpose of this Section is to avoid any person from gaining wrongful possession of land or other immovable property by his unlawful use of force. If dispossession of immovable property is not by force or intimidation, this Section cannot be used for its restoration. Such an order of restoration can be issued by the court only on conviction in an offence. The use of criminal force must be either against the person or the property.

Such an order of restoration should in no way infringe any legitimate right of a person in regard to the ownership of that property.

Procedure when a property is seized by Police

When a Magistrate gets the report of seizure of property by police, even if such property is not produced before a criminal court during an inquiry or trial, the Magistrate can order disposal of the property as deem fit, under Section 457 of the CrPC.  This Section applies when a property is seized by police but not physically produced before the court during trial or inquiry. A report or a mention of the matter in the court is good enough for the court to act upon it.

If the person entitled to the property is clearly known to the court, the Magistrate may order delivery of the property to him, under Section 457 (2) of the CrPC.

Procedure when no claimant appears

If the person entitled to the property is unknown Magistrate can detain it and issue a proclamation allowing six months to raise and establish a claim before him, under Section 458 CrPC.

If no claim is received within six months from the date of the proclamation, the Magistrate can order that such property shall be at the disposal of the state government. The state government will have the power to sell it as prescribed by the court. The order of the Magistrate under the Section 459 of the CrPC is appealable.

If the property belonging to an unknown owner is perishable the Magistrate can order selling it.

In short, the disposal of property is a matter of unfettered discretion for the court dealing with it.

The author of this article can also be reached at rajankila@gmail.com