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Published : June 10, 2010 | Author : pushkarthakur
Category : Criminal law | Total Views : 22713 | Rating :

Pushkar Thakur. 3rd Year Student. W.B.N.U.J.S Kolkata,West Bengal

The draft posted is on the code of Criminal Procedure Act, 1973 is “Forfeiture and confiscation of property”. The chapter in the code of Criminal Procedure Act, 1973 is the 34th chapter of the code that is “Disposal of Property”. The sections pertaining to the topic/chapter are sections -451 to section -459. For this research topic, the researcher has limited his research to domestic cases whose judgements serve as a reliable precedent for cases in future and also help in resolving any ambiguity which might arise from the said sections of the code of Criminal Procedure Act, 1973.

In the draft, the researcher has mainly covered the scope of the 9 sections enumerated and explained in the act under chapter -34 with regards to disposal of property. Thus for this matter the rest of the draft along with the conclusion which aims at providing a compendium view of the work done and relation between the mentioned sections, has been covered under 9 chapters pertaining to the sections order wise.

Sections 451 to 459 of the code of Criminal Procedure Act, 1973 deal with the powers of courts in the matter of disposal of property. Any order to be passed by a criminal court must come under one or another of the sections. What order should be passed by a court depends upon the section under which it passed the order , and that under which section it should pass the order ,depends upon the circumstances in which the property was seized or produced before it.[1]

Chapter -1 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.[2]

Section 451of the code of Criminal Procedure Act, 1973 enables a magistrate to provide for interim 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 act under the direct control of the court and have 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.

A matter of importance is here when the seizure is concerned with immovable property. Immovable property like lands, houses etc. Cannot be seized by a police officer under section 102 of the code of Criminal Procedure Act, 1973. The other thing with regard to this section which explains the things more clearly is that even the magistrate cannot pass any order under section 451 of the code of Criminal Procedure Act, 1973.[3]
Revision to this order is also not possible under the code of Criminal Procedure Act, 1973. An order under this section is held to be and interlocutory order and thus no revision can lie from such order.[4]

Chapter -2 Order For Disposal Of Property At Conclusion Of The Trial. [5]
When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fir for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled 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.

What we have to understand here is that the mere application of this section will involve clear explanation of the section itself because of the many an ambiguities which stem from the code.

The provisions of the section 452 come into operation only on the completion of any trial or an inquiry of a trial in a criminal court. They refer to four classes of property or document, namely
1. Produced before the court
2. In its custody
3. Regarding which any offence is committed.
4. Which is used in the commission of any offence?[6]

The court is empowered to confiscate the property in its custody, but it does not necessarily pass an order of confiscation in every case irrespective of the circumstances of the case. Under the code, an order can be made with regard to any property produced before the court or in its custody; even though it has not been used for the commission of any offence or no offence in regard to it has been committed. [7]

Chapter – 3 Payments To Innocent Purchaser Money On Found If Accused
When any person is convicted of any offence which includes, or amounts to, theft or receiving stolen property, and it is proved that any other person bought the stolen property from him without knowing or having reason to believe that the same was stolen, and that any money has on his arrest been taken out of the possession of the convicted person, the Court may, on the application of such purchaser and on the restitution of the stolen property to the person entitled to the possession thereof, order that out of such money a sum not exceeding the price paid by such purchaser be delivered to him.[8]

The magistrate can give compensation to an innocent purchaser only out of any money found in person of the accused; when no money was found in the possession of the person convicted, the magistrate cannot grant compensation to the innocent purchaser out of the fine imposed on the accused. If no money is found, then the only action by a bona fide purchaser is a claim in a civil court. The magistrate cannot call upon the owner to pay the purchase money of the stolen property to the bona fide purchaser and an order delivering the property to the purchaser from the thief because the original owner would not pay him the purchase money is illegal.

Chapter-4 Appeal Against Order Under Section 452 And 453
Any person aggrieved by an order made by a Court under section 452 or section 453, may appeal against it to the Court to which appeals ordinarily lie from convictions by the former Court[9].On such appeal, the Appellate Court may direct the order to be stayed pending disposal of the appeal, or may modify, alter or annul the order and make any further orders that may be just.[10]

What is to be understood in this section is that what is meant by “And make any further orders that may be just”. The addition of the words and make any further orders that may be just in this section gives such power to the superior court beyond any doubt. The words of this section are very wide and confer extensive powers in the High Court not only to modify , alter or annul any order passed by a subordinate court, but can pass any further orders as it may consider “JUST”.[11]

The fact that an order for delivery of property under section 452 has been carried does not deprive the High Court of its power to order restoration of property to the rightful owner.

Chapter-5 Destruction Of Libelous And Other Matter
On a conviction under section 292, section 293, section 501 or section 502 of the Indian Penal Code (45 of 1860), the Court may order the destruction of all the copies of the thing in respect of which the conviction was had, and which are in the custody of the Court or remain in the possession or power of the person convicted. The Court may, in like manner, on a conviction under section 272, section 273, section 274 or section 275 of the Indian Penal Code (45 of 1860), order the food, drink, drug or medical preparation in respect of which the conviction was had, to be destroyed.[12]
Taking the example of libel in books, where certain passages in a book are found to be defamatory an order directing the destruction of all copies of the entire book is illegal. Only the pages containing the objectionable passages should be destroyed. [13]

Chapter -6 Power To Restore Possession Of Immovable Property
This order may be passed either by the trial court or by any court of appeal, confirmation or revision. And the aggrieved party may resort to a civil court to have this order set aside. The jurisdiction under section 456 is of a quasi civil nature[14] and is exercised on the grounds of civil convenience and public policy.

Another thing to be noted here is the connotation of the word “Criminal Force”. ‘Criminal Force’ etc. In this section need not necessarily be ingredients of the offence at all. The words “attended by” should include an act done simultaneously with or immediately after another act. If the commission of an offence is immediately or shortly after followed by force etc. The case will definitely in such circumstance be covered under section 456. Such use of force etc. Must all be with the reference to a person and with the reference to property? [15]
What is also noticeable here is that this section unlike the previous sections deals with immovable property where as the sections 451-455 deals with movable property.

Chapter-7 Procedure By Police Upon Seizure Of Property
It’s important for this section that we go a bit into the legislative history of the section to understand the scope of the section itself. The section corresponds to the section 523 of the old code. Section 457 basically explains that the police can release a property to a person from whom it was seized if they find during investigation that seizure was unjustified. But if a court is moved under section 457, the police are to hold the property subject to the courts order. [16]

The court can pass interim order regarding custody under this section even though the case was under investigation. [17]
The question that might arise in this section is to what would happen on the death of accused pending trial and the subsequent disposal of property. There cannot be abatement of enquiry due to death of the accused, as such; the legal heirs of the deceased accused cannot demand the seized property as of right. In such a case the provisions of section-457 and not section 452 would be applicable. The petitioners would be required to establish their claim and the court would then make an enquiry and decide the entitlement for release if property under attachment. [18]

Chapter-8 Procedure Where No Claimant Appears Within Six Months
To understand the section the starting point of the application of the section is to be taken into consideration. When the proclamation has been issued under section 457 and six months have expired, then the provisions of section 458 come into play. And the person in whose possession the property was found on come up and prove his title to the property. If he is unable to show that the property is his own, it may be forfeited to the government. [19]

But the words “unable to show” does not reverse the presumption that the accused is the owner of the property in the absence of any proof on the contrary.[20]where the police seized certain property from the accused and no claimant came forward to claim the same though a proclamation was issued, and several items of the property bore the name of the accused but the magistrate said that the evidence produced by the accused was suspicious, though no evidence was elicited to show that the accused claims were false, then it was held that under the circumstance the proper and safest course was to follow the presumption laid down in section 10.[21]

Chapter-9 Power To Sell Perishable Property
Now all property cannot be held or seized forever. A reason for this is also the fact that property can also be perishable. If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner, or that the value of such property is less than ten rupees, the Magistrate may at any time direct it to be sold; and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.[22]

The sale of perishable goods is not imperative under this section and the magistrate may direct that such goods be delivered to the owner or the person entitled to their possession with such conditions as may think fir under section 457 read with section 459 of the Code of Criminal Procedure, 1973.[23]

The conclusion to this draft is basically a compendium of what the chapter, 34 of the Code of Criminal Procedure, 1973 holds for the judiciary. The fact to be noted here is that it is not only the movable goods but also the movable goods that are also covered under the purview of this chapter. The fact that in a lot of cases, the sections are read with each other makes it simple to reason the need for different sections explaining the small issues which can be full of ambiguities in the real life scenario.

Also the thing to be noted here is that the sections of the Code of Criminal Procedure, 1973 never work in isolation. As it can be noticed here also, the relevant sections of other acts also like section 110 of The Indian Evidence Act are also to be read with the sections of Code of Criminal Procedure, 1973 while deciding on a case. Thus the researcher through this draft has tried to confer upon a simple yet comprehensive explanation of the sections in relation to “Confiscation and forfeiture of property.” The researcher has limited his research to domestic cases keeping in mind the brevity of the draft and exhaustiveness of the act and its application. [24]

So disposal of property basically allows jurisdictions to freeze or seize properties which are either the proceeds of crime or the instrumentalities of crime Instrumentalities of crime are property that was used to facilitate crime, for example cars used to transport illegal narcotics. [25]

1. Pinayur Ramanatha Aiyar ,MLJ's P. Ramanatha Aiyar's Code of Criminal Procedure (Act 2 of 1974): an exhaustive, illuminating, and enlightening commentary on the Code of Criminal Procedure, 1973 along with state amendments and scientific subject index ,Modern Law Publications,7th edition,2001
2. C.H. Sohoni , Sohoni’s the Code of criminal procedure, 1973,law book co.,18th edition,1995
3. Sanjiva Row, M.L. Singhal ,Sanjiva Row and M.L. Singhal's the Code of Criminal Procedure, 1973: as amended by Act 32 of 1988, with state amendments, law book company, 3rd edition,1998
4. B.B. Mitra, B.B. Mitra on the Code of criminal procedure, 1973, Kamal Law House, vol-2 ,20th edition
[1] Rash Behara v. state AIR 1966 SC 887
[2] Section -451 of The code of Criminal Procedure Act,1973
[3] Amritlal v. State 1998 Cr Lj 3023( Raj)
[4] Praveen Kumar v. State 1989 Cr Lj 2537 (HP)
[5] SECTION -452 of the Code of Criminal Procedure , 1973
[6] Bal kaur v. State 1976 Cr Lj 1928 (HP)
[8] Section 453 of the Code of Criminal Procedure, 1973.
[9] Section 454 of The Code of Criminal Procedure, 1973
[10] Ibid.
[11] State bank of India v. Rajendra Kumar AIR 1969 SC 401
[12] Section 455 of The Code of Criminal Procedure ,1973
[13] Veerabhadra v. State AIR 1940 Mad 953
[14] By quasi-civil nature it is meant that as if it were of a civil nature.
[15] C.H. Sohoni , Sohoni’s the Code of criminal procedure, 1973,law book co.,18th edition,1995,pp-313
[16] AIR 1970 Ker 191
[17] P.O.Thomas v. Union of India 1990 Cr Lj 1028 (Ker) (DB)
[18] Gagan Bihari v. Bijay Prasad (1980)50 Cut Lt 515
[19] www.indianlawcds.com/CR2/cc1973.htm as seen on 31/03/10
[20] Section 110 of the Indian Evidence Act
[21] Ibid.
[22] Section 459 of the Code of Criminal Procedure,1973
[23] B.B. Mitra, B.B. Mitra on the Code of criminal procedure, 1973, Kamal Law House, vol-2 ,20th edition,pp-449
[24] Pinayur Ramanatha Aiyar ,MLJ's P. Ramanatha Aiyar's Code of Criminal Procedure (Act 2 of 1974): an exhaustive, illuminating, and enlightening commentary on the Code of Criminal Procedure, 1973 along with state amendments and scientific subject index ,Modern Law Publications,7th edition,2001 pp-223
[25] http://www.abanet.org/abastore/index.cfm?section=main&fm=Product. AddToCart&pid=5090116 as seen on 2/04/10

Authors contact info - articles The  author can be reached at: pushkarthakur@legalserviceindia.com

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