Karnataka High Court Issues Guidelines For Magistrates Dealing With Release Of Seized Properties U/S 451 & 457 Of CrPC
|The Karnataka High Court has issued guidelines for Magistrates dealing with the release of seized properties under Sections 451 and 457 of the Criminal Procedure Code (CrPC) or under Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
The Court was dealing with a criminal revision petition filed under Section 397 of the CrPC seeking reliefs.
A Single Bench of Justice V. Srishananda observed, “… it is noticed that State Government is required to frame necessary rules which would be in consonance with the power of the Court for disposal of all the seized properties including the electronic devices, digital devices, seized medical samples, food items, adulterated petroleum products which are highly inflammable in nature, perishable objects, precious metals like gold and silver etc.”
Advocates Pruthveen P. Kattimani and Giridhar H. represented the petitioner while SPP B.A. Belliyappa and HCGP Vinay Mahadevaiah represented the respondent.
Factual Background -
Upon a complaint lodged by a woman, a case was registered for the offence punishable under Sections 380 and 457 of the Indian Penal Code (IPC). The complainant was working as a Manger since four years in a business concern, in the name and style of ‘Gadgets club’ dealing with mobile telephones and its accessories and such other electronic equipment gadgets. It was her case that in September 2023, she closed the shop and went to her home as usual. On returning back the next day, in the morning, when she tried to open the shop’s main door, she noticed that mobile telephone sets, laptops, smart watches, analog watches etc., were stolen away by some unknown people by breaking open the lock of the main door.
A detailed list was furnished by the complainant as to the number of items that were stolen away from the shop worth about Rs. 35,00,000/- to Rs. 40,00,000/-. During the investigation, the accused persons were apprehended and from their custody, various items/properties were seized. The petitioner being the owner of the seized material objects, filed an application seeking interim custody of the same. The Trial Court rejected his application and hence, he approached the High Court.
The High Court in the above regard, said, “Till such time, the directions issued by this Court would serve as model guidelines for the Trial Magistrate while dealing with release of the seized properties either under Section 451 and 457 Cr.P.C., or under Section 497 of BNSS.”
Therefore, the Court issued the following directions which would cover in general the disposal of the properties as is contemplated under Sections 451 and 457 of CrPC., and presently under the provisions of Section 497 of BNSS –
(1) Description of the seized property shall be incorporated in the seizure mahazar so as to distinctly identify the seized property at all stages in the criminal trial.
(2) Mahazar shall include, serial numbers, make of the seized property, manufacturers name, if any, distinctive marks, if any, hall mark, if any, on the gold and silver articles with distinct numbers.
(3) Mahazar shall include, approximate value of the seized property (estimation of valuation to be obtained from the registered valuers wherever necessary).
(4) Trial Magistrate shall verify the contents of mahazar with details and personally examine the seized properties and satisfy that the seized properties are tallying with the description made in the mahazar and P.F. Memo.
(5) Unless a specific grounds/reasons are made out by the Investigating Agency, seized property shall not be allowed to be retained by the Investigating Agency.
(6) Even if the request for retention is allowed, the Trial Magistrate instead of passing a mechanical order by initialing on the readymade seal with words ‘permitted to retain’, pass a suitable speaking order in the order sheet of the case, directing the Investigating Agency that they would be retaining the property as a ‘Bailee’ and ensure that proper care is taken to preserve the seized property.
(7) Trial Magistrate shall ensure that proper infrastructure is available with the police for preservation of the seized material objects and must report to the Court as to its status when the charge sheet is filed.
(8) If the seized property is sent to the Forensic Science Laboratory, Investigating Agency shall ensure that the property is sent in a proper sealed condition and seals are intact, at all levels.
(9) Whenever the property is ordered to be retained by the Investigating Agency, and if an application seeking release is rejected, after the investigation, and if the need of retaining property is not imperative, the Court may pass suitable orders with regard to the interim disposal of the property.
(10) Trial Magistrates/Sessions Judges shall ensure the disposal of the property in respect of Narcotic drugs and psychotropic substances as per the directions of the Supreme Court in the case of Union of India v. Mohanlal and another (2016).
(11) In case of seizure of the vehicles, the standard operating procedure and the amendment to the Rule 232G of Karnataka Motor Vehicles (Amendment) Rules, 2018 shall be borne in mind by the Trial Magistrate while disposing the application filed under Section 451 and 457 CrPC., or under Section 497 of BNSS.
(12) In respect of the electronic and digital material objects, the Trial Magistrate shall ensure that the same to be retained by the police under retention order to ensure that the same are not exposed to the atmospheric moisture, resulting in damage to the seized electronic equipment or data stored therein.
(13) Necessary directions in this regard shall be made in the order while P.F. Memo is filed into the Court seeking retention of the seized electronic items, Compact Disc, Pendrives and such other storage media when produced and ordered to be retained shall be properly preserved by taking necessary precautions so as to avoid the damage to the data stored therein which may have a direct bearing on the merits of the trial.
(14) Precious items like Gold, Silver shall not be ordinarily to be retained with the Investigating Agency unless the same is required for investigation purpose like identity, finger print examination etc., and wherever it is necessary, photographs/videographs of the seized material objects can ordered to be returned to the applicant after deciding the rival claim, if any.
(15) In respect of the explosives, inflammable substances, like adulterated petroleum products, gas cylinders etc, the Trial Magistrate shall ensure the safety of the seized material objects, not only the safety of seized material objects and possible accident in the place where it is stored and pass suitable orders.
(16) In respect of perishable items, the Trial Magistrate without loss of time, shall consider the application and pass suitable orders like auctioning the perishable items and directing the auction money to be kept in ‘escrow account’ subject to the final result of the criminal proceedings.
(17) In respect of the seized material objects under the special enactments like Essential Commodities Act etc., the Trial Magistrate, shall strictly adhere to the rules and regulations under the special enactment and pass appropriate orders as early as possible.
(18) In respect of seized cash, photograph/ videograph of the currency notes to be taken and serial numbers of the seized currency notes shall be written in a mahazar. Immediate steps are to be taken to deposit the currency notes to Reserve Bank of India and value of the currency notes thereof shall be ordered to be returned to the successful party at the end of the trial.
The Court further clarified that these directions are only indicative and not exhaustive and would serve and guide broadly the power to be exercised by the Trial Magistrate or Revisional Courts as the case may be in disposal of the seized properties under Sections 451 and 457 CrPC, and Section 497 of BNSS.
Accordingly, the High Court allowed the revision petition and issued necessary directions.
Cause Title- Vishal Ramesh Khatwani v. The State of Karnataka