During trial, especially criminal trial, property can be seized by the investigating authority for evidence purpose. This property may include any movable property and can also include money which has been recovered. To get back this property which is in the custody of the police or investigating agency, you can either wait till the end of the trial or apply under the Code of Criminal Procedure, 1973 (CrPC) to receive possession of the property temporarily, during pendency of trial.
Under the Code of Criminal Procedure, courts, especially the Magistrate can dispose properties which are in dispute, in accordance with Sec.451-459 of the CrPC. These provisions relate to destruction, confiscation, sale, or delivery of the property to the person claiming it. However, one of the most important provisions of the CrPC is Section 452.
Section 452 CrPC applies when an inquiry or trial is concluded. After an inquiry or trial is concluded it is the duty of the Court to order the disposal of the property regarding which an offence was alleged to have been committed and to get back the property you need to file an application under Section 452 of the Criminal Procedure Code, 1973. Section 452 empowers the Criminal Court to pass final orders regarding disposal, destruction, confiscation or delivery as it thinks fit, when an enquiry or trial is concluded. Therefore, property seized must always be deemed to be property produced before Criminal Court and having become custodia legis. However, under Section 451 CrPC, the Court might have allowed you to become custodian of the property but in spite of that upon conclusion of trial you must apply under Section 452 CrPC to get further custody of the property or goods. It must also be noted that property includes not only such property that has been originally in the possession or under the control of any party, but also includes any property into or for which the same may have been converted or exchanged and anything acquired by such conversion or exchange, whether immediately or otherwise. Thus, stolen money converted into buying car or bike would also lead to the resultant bike or car being property coming under the purview of Section 452 CrPC.
You must also note that Sections 451/452 CrPC comes into play in cases of properties seized by police during the course of enquiry or investigation of an alleged offence and therefore, property becomes custodia legis as soon as seized. On the other hand, Section 457 CrPC applies in cases of properties seized by police which are not linked with complaint of an offence received earlier and therefore, not likely to be produced before Criminal Court for the purpose of enquiry or trial.
For the application of the provisions contained Section 452 CrPC, it is necessary that there must have been an inquiry or trial which must have been concluded and the property in respect of the order is sought to be made must be one (i) which has been produced before the Court; or (ii) which is in its custody, or (iii) regarding which the offence alleged was committed, and (iv) which has been used for commission of the offence.
However, it must also be noted that the Court would not given an order for disposal for property on an application for disposal of property which isn’t livestock or is subject to speedy and natural decay or for which no bond has been executed in pursuance to Section 452(2) CrPC until passing of two months from the completion of trial or until any appeal that may have been filed is disposed of by the appellate court. While passing order under Section 452, the Court should exercise its judicial discretion and give reasons for choosing a particular mode of disposal. But, you may also be required to execute a bond with or without sureties to the Court for delivery of any property if you want delivery of property before conclusion of appeal period or before termination of two months period from the date of conclusion of trial or if the order for disposal of property under Section 452(1) is modified or set aside on appeal or revision.
Further, appeal against order under Section 452 can also lie to the appellate court by any person aggrieved by such an order. Section 452 (4) expressly provides that the carrying out of the order of disposal of case property should be stayed until the appeal from it is finally disposed of or until the appeal from the order or conviction or acquittal is disposed of by the appellate Court.
Where the title to the stolen property is uncertain or disputed and there is no sufficient evidence to show as to who is the actual owner of it, the Court of Session under Section 452(3) CrPC, may direct the property to be delivered to the Chief Judicial Magistrate who would deal with it in the manner as provided in Sections 457, 458 and 459 of the Code.
In Barendra Kumar Choudhury vs State Of Orissa 1995 II OLR 252, the Orissa High Court held that:
“Section 452, CrPC deals with order for disposal of property at conclusion of trial. The said provision comes into operation only on conclusion of an enquiry or trial in a Criminal Court. It refers, to four classes of property or document: (a) produced before the Court; (b) in its custody; (c) regarding which any offence is committed; or (d) which is used in committing any offence. These four classes of property are listed disjunctively so that, provided the inquiry or trial has come to an end and the property falls within any of the four categories, the Court has jurisdiction to pass order under the Section. Such property can be disposed of in any of the four following ways : (i) destruction; (ii) confiscation; (iii) delivery to person entitled to its possession; or (iv) otherwise. Stress is on return of the property to the person claiming to be entitled to possession thereof in case property is not for destruction or confiscation. The section authorises the Court to returns the articles, whether or not an offence is committed in respect thereof, to the person claiming to be entitled to possession. The expression” person claiming to be entitled to possession” is important. It does not mean owner. Ownership involves a question of title, whereas possession does not. It is stated that, trial Court should have by resort to the residual provision “or therwise” directed delivery to the accused. The words “or otherwise” must be read ejusdem generis to the modes of disposal previously stated and do not confer a general power to make any order of disposal which the Court may deem fit. As appears from the order of learned Special judge” none of the accused persons laid any claim to the seized property. Before me also no material could be placed as to how appellant ” is aggrieved by the direction for confiscation as the claim is not the seized articles belonged to him. Therefore, learned Judge, Special Court was justified in directing return of the truck to the owner and also proceeds of seized rice to be confiscated to the State.”
However, if there is dispute regarding who owns the property, in Keshar Singh vs The State Of Bihar 2013, the Patna High Court has held that
“Sections 451 and 452 of CrPC cannot be made applicable for the disposal of the property as during the trial the accused died and on account of death the proceeding has abated and it will not be deemed that proceeding has concluded in absence of final judgment by the Criminal Court. In that circumstance Section 457 CrPC has a play in this case but the criminal Court will not have a jurisdiction to decide the rival title and ownership claimed by the parties. The Criminal Court will have a jurisdiction only to the extent when there is no serious dispute of title, ownership and possession over the property.”
In the present case the property from whom has been recovered is dead. Different claimants are coming forward in such a situation when the parties are claiming their rival claim over the property how far the Magistrate can make enquiry on rival claim of disputant party about their right and title. According to the Calcutta High Court in the case of Ram Khalawan Ahir Vs. Tulsi Telini A.I.R.1924 Calcutta 1040 the Court has taken the view that when there is dispute of title matter will be referred to Civil Court and direction of possession would abide by the result of title suit as conflicting right cannot be decided by Criminal Court and during that period the property will remain under the custody of criminal court.
In nutshell the conclusion is derived, in case of serious dispute of right, title and ownership of the property the Criminal Court will not adjudicate the ownership and title of the property seized as jurisdiction lies within the domain of Civil Court and the Criminal Court would abide by the result of the decision of the Civil Court and till then the property will remain under the custody of Criminal Court which is supported from the view of Andhra Pradesh High Court in the case of In re Masgi Bitchanna A.I.R.1969 AP 54, Paragraph 2 the Andhra Pradesh High Court has held that in serious dispute about the title and ownership the parties would be asked to approach the Civil Court and get the dispute settled as the Criminal Court cannot go into these disputes and decide. In any case, such a decision would be subject to the decision of the Civil Court till the dispute is decided. But the parties or any one of them who approach the Civil Court can get necessary directions of the Civil Court if the property has to be preserved.
The application under Section 452 CrPC must be in the given format as Criminal Miscellaneous application:
In the Court of…………………………………………, ___________
Cr. Misc. Application No………………………………………, of _________
Cr. No. ………………./14 u/s …………………… IPC
P.S. …………….. District………….
Humble release application on behalf of the applicant ……………………….S/o……………………. R/o……………….P.S………………………..District……………….. is as under:
It is, therefore prayed that your Honour may be pleased to kindly release the said Bike No…………….. in favour of the applicant and oblige.