EXISTING PROCEDURE FOR DISPOSAL OF PROPERTY PENDING INVESTIGATION NEED RECONSIDERATION

EXISTING PROCEDURE FOR DISPOSAL OF PROPERTY PENDING INVESTIGATION NEED RECONSIDERATION

Author

Dharmendrasinh Gemalsinh Rana

Prosecuting Officer (A.P.P)

LEGAL DEPARTMENT

GOVERNMENT OF GUJARAT

सत्यं नास्ति परो धर्म .. “Nothing is excellent duty then practicing truth.” I have started to write with this prologue because topic which I desired to analyses needs courage rather than knowledge. In this article I have raised questions on the existing procedure for disposal of property pending investigation and propose correction according to law. Reader may please bear with, as it challenges working of most honored and responsible institution of investigation and justice. But, I have a faith in truth. My humble intention is to stand by the side of victimized.

We have adopted ‘Rule of Law’ from jurisprudence of Britain. We have pride for this principle. Every judicial and official function is being performed according to law. Similarly In disposal of property seized by police agency also per say procedure laid down by law is followed.

Presently in our state all most everywhere, whenever any property is seized during investigation unanimously it is released only by court. To entertain such application provision of Sec.451 or 457 of Cr.P.C is often quoted. In the criminal court thousands of application are filed and disposed off during pending investigation by police. In disposing such applications court issues process, conduct enquiry and finally dictate order. In the course of proceedings, to get back property seized by police, complainant or victim has to obtain consent of accused and investigation, also to attend court again and again. Registers of Criminal Miscellaneous Application are full of such applications and court also overburdened in deciding such application.

Applicants for releasing property who are either complainant whose property is lost in theft or any other victim, in spite of being benefitted from this judicial procedure, once again victimized. As he is supposed to repeatedly attend court, to engage Lawyer, to pay fees and bare process expenses and finally to get release his own property back he must give surety and bond. In short, procedure of disposal of Property during investigation causes piling of criminal matters and increases unnecessary workload in the court at one side and on the other side give pain, loss and sufferings to owners of property.

This situation raised some questions. Is it compulsory to file application in court to get released seized property in all situations? Is there no power to release seized property during investigation to police? Is it legal for court to order disposal of property during investigation? Whether there exists provision which in accordance to Article 300A provides for release their property easily?

We may try to get point to point answer of above questionnaires.

To get fundamental consideration on the situation of property seized by police, we must start from the basic rights of people of India. It needs to test the existing procedure on the anvil of Constitution Of India Which is fundamental law of the Land and empowers and guide all organs. The right to ‘hold property’ was a fundamental right included in part-3 of our Constitution. Which was later canceled, but simultaneously Chapter 7, Article 300A has been added, it shows that, ” Persons not to be deprived of property save by authority of Law.” [1]

Power to seize property is included in Che.7 Sec.102 of Cr.P.C . enacted in 1973 initially there is no specific provision for release of seized property by police. It was noticed by our Supreme Court in the year 1976, Anwar Ahmed v. State of UP Reported in AIR 1976 SC 680. It is stated that, ‘We would like to observe that even in the new Criminal Procedure Code, there is no express provision which empowers the police to get a bond from the person to whom the property seized is entrusted. This may lead to practical difficulties, for instance in cases where a bulky property, like an elephant or a car is seized and the Magistrate living at a great distance; it would be difficult for a police officer to report to the Magistrate with the property. In these circumstances, we feel that the Government will be well advised to make suitable amendments in the Code of Criminal Procedure to fill up this serious lacuna by giving power to the police for taking the bond in such circumstances. ‘[2]

In taking into account Apex Court’s suggestion, Legislature amended Sec.102 by  Cr.P.C Amendment Act 1978  In sec.102 of the Act sub-section 3 has been incorporated. By inclusion of this provision since 1978 investigation agency is empowered to release seized property in certain circumstances.

We may refer sec.102 (3) hereunder. “ Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it can not be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.”[3]

There is a provisions incorporated in chapter 34 of Cr.P.C U/S 451 to 459 to hold Inquiry and dispose property by court or Magistrate during trial or Inquiry. In implementation of this provisions first condition is either ‘Inquiry’ or ‘trial’ must be pending. To get the its definition ‘ Sec.2 (G) “inquiry” means every inquiry, other than a trial, conducted under this Code by a magistrate or Court.’[4] So it is crystal clear from above position that as pending investigation doesn’t mean ‘inquiry’ nor it is a ‘trial’ and therefore power under che-34 Cr.P.C cannot be exercised by court or magistrate when investigation is continue.

So,  Lawful, easy and effective procedure to release seized property in the circumstance is directed in 102(3) and police authority has power to release property. At the same time except during Inquiry or trial Court or Magistrate has no power to order disposal or release of property. This procedure is only in accordance with the statutory right envisaged u/A 300A.

To disposal of seized property SC directed since 1976 and legislature empowered police agency to release such property in certain situation in 1978 even though we have continued old custom and continued depriving people to entertain their own property. We hope such unconstitutional customary procedure for disposal of property by court during investigation may struck down by Constitutional authority as soon as possible. सबको सन्मति दे भगवान मेरा भारत बने महान ..

Dharmendrasinh Gemalsinh Rana

Prosecuting Officer (A.P.P)

Chief Judicial Magistrate Court. Surat

E mail : manusmruti@gmail.com M: 9427582895

[1] Constitution of India Ch-7 Article 300A

[2] Anwar Ahmed v. State of UP Reported in AIR 1976 SC 680

[3] Code Of Criminal Procedure 1973 Sec.102(3)

[4] Code Of Criminal Procedure 1973 Sec.2(g)

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