Madras High Court
Lenovo India (P) Ltd vs The State Rep. By on 20 November, 2013
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.11.2013
CORAM:
THE HON'BLE MR.JUSTICE P.DEVADASS
Crl.O.P. No.27812 of 2013
1.Lenovo India (P) Ltd.,
rep. by its Inbound Manager,
K.S.Mohan,
No.4,Venkatnarayana Nagar,
T.Nagasr, Chennai-700 017.
2.Indev Logistics (P) Ltd.,
rep. by its Manager, D.Joesph,
Old No.41, New No.81, Thambu Chetty Street,
Chennai-600 051. ... Petitioners
Vs.
The State rep. by
Inspector of Police,
M-2,Madhavaram Police Station,(Crime),
Chennai-600 051. ... Respondent
[Crime No.1070/2013]
Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to set aside the order dated 4.10.2013 passed by the learned Judicial Magistrate, Thiruvottiyur in Crl.M.P.No.6638 of 2013 and modify the same granting permission to the first petitioner to sell the case property.
For Petitioners : Mr.I.Subramaniam, Senior Counsel
for Mr.P.Muralidharan
For Respondent : Mr.C.Emalias
Additional Public Prosecutor
O R D E R
This Criminal Original Petition has been directed by the petitioners to set aside the order of dismissal passed by the learned Judicial Magistrate, Thiruvottiyur, in Crl.M.P.No.6638 of 2013 refusing permission to sell the case-property.
2. The first petitioner, namely, 'Lenovo India (p) Ltd., T.Nagar, Chennai', engaged 2nd petitioner, namely, 'Indev Logistics (p) Ltd, a Clearing and Forwarding Agent, to deliver 954 numbers of Lenovo Desktop Computers, 291 numbers of Lenovo Laptop Computers and 293 numbers of Lenovo Laptop Computers, at a particular place.
3. On 4.9.2013, the second petitioner loaded the consignment in a vehicle. It was driven by one Radhakrishnan. But, the consignment did not reach its destination.
4. On 6.09.2013, Joseph, the Manager of second petitioner complained to police. A case in Crime No.1070 of 2013 for an offence under Section 406 IPC has been registered as against the said Radhakrishnan. In the course of investigation, besides him some more persons having been concerned in this crime came to light. The Investigation Officer seized the said goods. He produced them under Form-95 before the learned Judicial Magistrate, Thiruvottiyur.
5. Joseph filed Crl.M.P.No.6241 of 2013 under Section 451 r/w 457 Cr.P.C. before the said Magistrate, seeking return of the said goods. A top official of the first petitioner gave no objection in favour of the second petitioner.
6. On 23.9.2013, the learned Magistrate, directed return of the goods to the second petitioner, imposing the following conditions.:-
(i) Petitioner shall take a photograph of the case property and hand over it to the court.
(ii) Petitioner shall produce the original Invoice and Bills to the Court.
(iii) Petitioner shall execute a bond for the value of case property with one surety.
(iv) Petitioner shall not alter/tamper/mortgage/pledge the property till the disposal of the case.
(v) Petitioner shall undertake to produce the property as and when directed by the Court/I.O.
7. As directed, original invoices and the bills were produced. Viswanatham Gandla, filed surety affidavit offering property worth Rs.5 crores. The goods were (colour) photographed with compact disc. They were handed over to the Court.
8. Subsequently, Mohhan, Manager of the first petitioner filed Crl.M.P.No.6638 of 2013 under Section 451 Cr.P.C., seeking permission of the Court to sell the said goods.
9. In para-9 of his affidavit, the said Mohhan has stated as under:-
"9. I submit that the goods now in the custody of the second petitioner are being held on behalf of the owners, viz., the first petitioner herein to whom the second petitioner is bound to hand over, as the second petitioner is only a carrier acting on behalf of the first petitioner. The goods themselves have been imported for the purpose of immediate sales as they are subject to deterioration and immediate loss of value due to the ever-innovative electronic market. The goods, if kept for just a few months would not fetch even half the price. It has therefore become necessary that in order to mitigate the losses, both by way of lying useless or by way of damages that may arises out of contracts for sale entered into which have to be mitigated at all costs. There would otherwise be a possibility of a huge financial loss."
10. The Investigation Officer objected to it since the investigation is pending.
11. On 4.10.2013, the learned Magistrate, dismissed the petition on the following premises.
"6. The scope and spirit of the provision of law enumerates that perishable goods which are not likely to withstand the course of trial could be sold. Moreover our Hon'ble Apex Court and High Court, Madras has laid down the principle that combustible materials, vehicles which are likely to suffer damage could be sold. But the facts of decisions relied on by the learned counsel does not apply to the facts of the instant case.
7. In the case on hand originally an application for return of property was filed. But the same was bereft of details as to seeking return of property for the purpose of sale. Further, the petitioners have also failed to produce any proof as to any agreement or contract with 3rd party to sell the properties. Barring the statement that they would suffer financial loss, if properties are not sold the petitioners failed to establish any imminent danger or damage to the goods, if not sold.
8. Further, it is necessary to point out that the properties are case-properties, which are likely to be marked as material objects during the course of the trial. Unlike other goods like vehicles, etc., wherein the photograph of the same would suffice to be marked as material objects, the present case- properties involves lots of minute particulars like the company make, design and other technical details which are essential to be established during trial. Thus, the non production of these case-properties would affect fair trial.
9. Hence, I am of the considered opinion that selling of the case-property, especially when investigation is still pending is not just and necessary at this juncture. In the above circumstances, I am not inclined to allow this petition."
12. Aggrieved, the petitioners have directed this criminal original petition to set aside the said order.
13. According to Mr.I.Subramanian, the learned Senior Counsel, Criminal Courts have wide power under Section 451 Cr.P.C to pass orders as to the disposal of the properties involved in a criminal case. Interest of the owner of the property is to be protected. As it has been already highlighted by the Hon'ble Apex Court in SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT [2003(1)CTC175], properties involved in a criminal case has to be prevented from becoming a waste or junk.
14. The learned Senior Counsel referring to the phrase, 'if it is otherwise expedient so to do', 'or otherwise disposed of' employed in Section 451 Cr.P.C would submit that it has wide connotation and scope. Explaining the same, the learned Senior Counsel submitted that if the situation so warrants that the properties are of such a nature, such as machines, tractors, computers and computer desk tops, by their nature, if they were kept idle, unused, unprotected they will become a junk, it will affect their utility value, it will be against the interest of the property owner. In such circumstances, the Criminal Courts can order disposal of those property in an appropriate mode including their sale. The learned Senior Counsel also cautioned that to protect the interest of the prosecution case, evidence of such properties, which are ordered to be sold, shall be preserved in another form and produced before the trial Court during trial. According to the learned Senior Counsel this would protect the interest of the owner of the property and also the case of the prosecution. And under Section 451 Cr.P.C. sufficient power is available to the Criminal Courts.
15. In support of his submissions, the learned Senior Counsel would cite the following decisions:
(i)K.W.GANAPATHY VS. STATE OF KARNATAKA [2002 Crl. LJ 3867]
(ii) SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT [2003(1)CTC 175]
(iii) CANARA BANK VS STATE OF PUNJAB AND ANR. [2006 CriLJ 86]
(iv) SUNDARAM FINANCE LTD VS THE STATE OF TAMIL NADU AND ANR. [2011 (1) MLJ 191]
(v) Crl.R.C.(MD)Nos.74 & 75 of 2011 dated 18.10.2011 [CHOLAMANDALAM DBS FINANCE VS STATE AND OTHERS]
16. According to the learned Additional Public Prosecutor the computers and desktops seized in this case were produced before the Court under Form 95. They are the case-properties. They are required for marking them during trial. Thus, if they were permitted to be sold, they will not be available for the said purpose. Thus, it will not be in the interest of prosecution case.
17. I have anxiously considered the submissions of both sides. Perused the materials on record, averments in the petition and the counter filed by the Investigating Officer and the decisions cited at the bar.
18. Here we are concerned with properties involved in criminal case.
19. Chapter XXXIV of the Code of Criminal Procedure 1973, Sections 451 to 459 deals with disposal of the property. Of them, noticing Sections 451, 452 and 457 becomes relevant. They runs as under:
"451. 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.
Explanation.-For the purposes of this section, "property" includes-
(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."
[emphasis supplied by us] "452. Order for disposal of property at conclusion of trial.__(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle 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.
(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.
(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also 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."
[emphasis supplied by us] "457. Procedure by police upon seizure of property.__ (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
[emphasis supplied by us]
20. Offences are defined, prescribed in the General Law of Crimes, namely, Indian Penal Code or in any other statutes prescribing certain commissions and omissions as offences. Generally, they falls under personal offences, property offences, offences against state. Property offences are offences committed as against property, for instance, chain snatching, theft. Under the other category of offences, the offenders have occasion, need to use a property for committing crimes, such as vehicle used to carry the assassins. There are cases which are admixture of both the types, such as a murder for gain. In both type of cases, since the properties are concerned, they becomes case-properties. They have to be disposed of either by returning them to the persons entitled to it, confiscated to state, if it is liable for confiscation, by destruction, if they are liable to be destroyed and by sale, in case they are perishable in nature or subject to speedy and natural decay.
21. A close reading of the provisions of Sections 451 and 452 Cr.P.C. would show that they comprehend both the type of case -properties and their disposal. The marked difference between both is that Section 451 deals with properties during enquiry or trial, while Section 452 deals with the properties at the conclusion of the trial and also thereafter. Section 451 is for pre-enquiry, pre-trial stage, while Section 452 is for post-enquiry, post-trial stage. Section 457 will occur in both the stages and gives power to the Court to pass appropriate orders when the properties are not produced before the Court. It will overlap Sections 451 and 452. Section 457 could be added to the said Sections depending upon the stage of the case, namely, enquiry, trial, as the case may be.
22. In SMT. BASAVA KOM DYAMANGOUDA PATIL V. STATE OF MYSORE AND ANOTHER, [1977 (4) SCC 358] regarding case- property with reference to Section 451 Cr.P.C long back, the Hon'ble Apex Court has also observed as under:
"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain its ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquire or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its 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........."
23. The appalling situation of case-properties, such as vehicles, machines and kindered items found strewn in (Police) Station House premises and Court House premises and ultimately becoming a junk and loosing their value has engaged the attention of the Hon'ble Apex Court in off-quoted SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT [2003(1)CTC 175].
24. In SUNDERBHAI AMBALAL (supra), the Hon'ble Apex Court also noted as under:
"5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as:-
(1) for the proper custody pending conclusion of the inquiry or trial;
(2) to order it to be sold or otherwise disposed of, after recording such evidences as it think necessary;
(3) if the property is subject to speedy and natural decay, to dispose of the same.
.............
7. In our view, the powers under Section 451, Cr.P.C, should be exercised expeditiously and judiciously. It would serve various purposes namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further change of tampering with the articles."
25. In SUNDERBHAI AMBALAL (supra), the Hon'ble Apex Court dealt with various types of case-properties such as vehicles, currency notes, movables and it enabled the criminal courts to give custody of the property to the complainants, owners and eligible persons in exercise of their power under Section 451 Cr.P.C. Taking note of the fact that they may be required for marking them during trial, the Hon'ble Apex Court indicated an alternative procedure envisaging the preservation of such type of material/physical evidence in a converted form. It is pertinent to note paragraph 12 of the said Judgement, which runs as under:
"12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:-
(1) preparing detailed proper panchnama of such articles;
(2) taking photographs of such articles and a bond that such articles could be produced if required at the time of trial; and (3) after taking proper security."
26. In SUNDERBHAI AMBALAL (supra), the Hon'ble Apex Court expressed its anxiety in unnecessarily keeping the case-properties either in Station Houses or in the Court Houses affecting the interest of the property owners and ruining the property itself. Thus, the Hon'ble Apex Court directed speedy disposal of the case- property in an appropriate manner giving guidelines. The Apex Court has taken note of the interest of the owners of the property on the one hand and the interest of the prosecution to produce them as evidence at the time of trial on the other hand. Striking a balance, the Hon'ble Apex Court issued various directions and laid down guidance as to the disposal of the property pending enquiry or trial.
27. In the case before us, accused Radha Krishnan is alleged to have committed an offence under Section 406 of I.P.C., namely, criminal breach of trust. He had committed such offence with respect to the property, namely, huge numbers of computers and computer desktops, entrusted to him. They runs to several lakhs of rupees. They involve huge amount.
28. The learned Judicial Magistrate, Thiruvottiyur, on 23.9.2013, in Crl.M.P.No.6241 of 2013, referring to SUNDERBHAI AMBALAL (supra) gave interim custody of the case-properties to the second petitioner, who received them on behalf of the first petitioner. Subsequently, in Crl.M.P.No.6638/2013, the first petitioner sought the permission of the learned Magistrate to sell them since the said goods are of such a nature keeping them as it is will result in they becoming a junk and they becoming absolete in the computer market because of emergence of improved version of computers and huge capital/money is involved.
29. It is pertinent to note that the first petitioner being owner of the case-properties has not been denied to by anybody. The accused did not claim the case-properties. There is no rival claim.
30. The first petitioner did not commit any mistake nor offence. It is victim of the offence. It has to sufferer as long as its money is locked up in the case-properties.
31. Owner wants to sell the case-property. However, prosecution wants to keep it as it is for marking them during trial.
32. Two things are very important. The interest of the property owner is to be protected and the interest of the prosecution in presenting the required physical evidence before the Court should not be lost sight of.
33. Section 451 of Cr.P.C also says that if the property is subject to speedy and natural decay, if it is otherwise expedient so to do, the Court may after recording such evidence as it thinks necessary, order it be sold or otherwise dispose of. The words, 'subject to speedy and natural decay', cannot be restricted to perishable items alone. There are various items of properties which are subject to deterioration and such deterioration may also set in speedily. A brand new vehicle or any kind of vehicle or any electronic item may come under this category. If computers or other electronic items are kept as it is, naturally, they will loose their utility value. Further, the phrase, 'if it is otherwise expedient so to do' 'otherwise disposed of' used in Section 451 Cr.P.C. empowers the Court to dispose of the property during enquiry, trial, if the situation so warrants. For instance, in a case huge quantity of gold items may be case-property. If a jeweller or a complainant/owner of the property, when urgently in need of money, for business purposes, educational and other purposes of their sons and daughters, they may have to dispose of those items to raise money. Thus, the situation may so warrant giving them permission to sell the case properties to raise the money for their pressing needs.
34. In K.W.GANAPATHY VS. STATE OF KARNATAKA [2002 CrilLJ 3867], a Zen car was stolen. Its interim custody was given to the car owner, who purchased the car under finance from a bank. Since he was unable to pay the instalments, he has decided to dispose of the car and apply the sale proceeds towards the loan. He sought for permission of the Court to sell the car. He was denied permission since the car/case-property is needed for marking it during trial.
35. In GANAPATHY (supra), as before us arguments were placed by the property owner and the prosecution. The Karnataka High Court granted permission to the owner to sell the car. It would be profitable to extract here under the following portions of the Judgment in GANAPATHY (supra) as it highlights the power of a Criminal Court under Section 451 Cr.P.C to give permission even to sell the case-property.
"4. After hearing the counsel for the State and the petitioner, I find that the grievance made out by the petitioner is genuine. Of course, in the usual course of routine conditional orders are passed while delivering the property to the interim custody. When the property has any evidentiary value, it is to be kept intact and to ensure its production during the course of evidence for the purpose of marking as a material object the condition of non alienation is imposed. However, when the property has no evidentiary value and only the value of the property is to be properly secured for passing of final order under Section 452, Cr.P.C, the necessity of keeping such properties intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law.
5. The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial. Many a time, we find as a routine course, the Courts impose condition of non alienation and to keep the property intact without alteration in any manner. Many a time such conditions act harshly upon rightful owners of the property from exercising their lawful ownership rights.
6. Irrespective of the fact whether the properties have evidentiary value or not it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to. The rightful, owners, who have lost the property by an act of crime even after detection and recovery are continued to be prevented from beneficial possession and enjoyment of the same by the archaic conditions imposed as a regular routine despite the changed context of scientific developments.
7. To illustrate, a situation one X loses gold jewellery by theft. The police successfully detect and discover the gold jewellery the same is produced before the Court. Production of gold jewellery and marking of the same in evidence to prove the same as corpus delecti is one of the insistence of law as a part of fair trial. Even after the gold jewellery is given to the custody of X to deprive him by imposing the condition of non alienation from exercise of right ownership for unreasonable length of time would be too harsh and one sided, and a non chalant approach towards the victims of crime. It may be that X require the gold jewellery for the purpose of the marriage of his daughter or may be that he may require funds for medical treatment or other genuine needs, when he has no alternative source except by sale of the gold jewellery, the condition of non alienation in such situation would be onerous and unreasonable. The production of property during the trial having incriminating value is a insistence to secure the rights of accused as a part of fair trial. At the same time, when there is a possibility of having a secondary evidence of the said property, it is no longer necessary in law to insist that the property to be kept intact without alteration and non alienation.
8. In order to ensure the recovery of value, it is necessary that the trial Court shall take all necessary diligent steps to get the market value of the property, correctly assessed the photography of the property,, properly taken depicting all its features and dimensions and before the property is delivered to the interim custody, the photographs have to be certified by the Magistrate. Further necessary bonds and security to be taken from the person to whom interim custody to be given for the value of the property in order to ensure prompt recovery of value from the person to whom interim custody is given. By following the said safeguards, it is no longer necessary to follow the archaic convention of imposing condition of non alienation. After all the Court while passing a judicial order of interim custody is guided by the investigation material and other prima facie material, which support the claim and title of the person to whom interim custody is given. Having once given the interim custody to the person who is supposed to be the owner of the property, depriving him to effectively use and exercise the lawful ownership rights would be unlawful."
36. In CANARA BANK VS STATE OF PUNJAB AND ANR. [2006 CriLJ 86], Bank granted loan to the accused to purchase a tractor. The accused purchased the tractor. Later, it was found that he practised fraud on the bank. A criminal case was registered. The tractor was seized. The bank was given interim custody of the tractor with a condition that it should not be disposed of. Since keeping the tractor as it is would make it a junk, the bank wanted to sell it. It sought the permission of the trial Court to sell it. However, it was dismissed. The bank came to the High Court. The bank and the prosecution placed arguments similarly as it has been placed before us by the property owner and the prosecution. Under Section 451 Cr.P.C., the High Court permitted the bank to sell the tractor.
37. It would be useful to note down the arguments generated in 2006 Crl.L.J. 86 before the High Court and the reasons upon which the High Court granted permission to sell the tractor. They runs as under:
5. Counsel for the petitioner contends that even though the tractor is case property, it was released, to the petitioner, vide order dated 5-2-2004, subject to conditions one being : that it would not be disposed of without prior permission of the Court; the Court was required to consider the feasibility of granting permission to sell. The application and the revision have been dismissed on the short ground that the tractor is case property, and required to be produced on each and every date of hearing. The Courts have ignored the provisions of Section 451 of the Cr.P.C. and have proceeded to decide the application, as if case property cannot be sold in any eventuality. Section 451 of the Cr.P.C, envisages sale of case property and does not confine the powers of a Court, regarding sale of property only to goods subject to speedy and natural decay. It empowers the Court to dispose of case property, not subject to speedy and natural decay, provided the Court records a finding that it is expedient to do so. It is further contended that a tractor, may not be a perishable; item but being a machine is subject to natural decay, It comprises of rubber and mechanical parts which if not used, served, repaired and replaced regularly, would turn the tractor into junk, thus causing loss to the Bank and also to accused. The tractor is of no use to the Bank. If sale is permitted, it would enable the bank to recover a part of the loan advanced and would also reduce the accused's (respondent No. 2) civil liability. It is further contended that the bank is ready to deposit the sale proceeds before the trial Court, release whereof would be subject, to the such orders as the trial Court may pass.
6. Counsel for the State of Punjab, on the other hand, contends that the orders passed by the learned Courts below are legal and valid. Case property cannot be ordered to be sold as it is a substantial piece of evidence, relating to the commission of an. offence, Its sale would prevent the prosecution from producing the tractor before the Court at the time of adducing evidence. Even otherwise, the provisions of Section 451 of the Cr. P. C. relate to perishable goods, subject to decay and a tractor not being perishable the Courts below rightly declined permission to sell the tractor.
7. I have heard the learned Counsel for the parties arid perused the record. Section 451 of the Cr. P. C. reads as under :--
Section 451, Order for custody and disposal of property pending trial in certain cases,-- When any property is produced before any Criminal Court during an 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.
8. When any property is produced before a Criminal Court, during any inquiry or trial and in case a prayer is made for sale thereof, the Court is empowered to, if the properly"... is subject to speedy and natural decay or if it is otherwise expedient so to do..." order its sale or disposal. For this purpose, the Court may if it deems appropriate record such evidence as it thinks necessary. The words...or it is otherwise expedient so to do so... succeeding the words ..." speedy and natural decay..." are not to be read edjusdem generis to the words "speedy and natural decay." The use of the word expedient confers a discretion, upon a Court to order sale of case property other than property subject to speedy and natural decay, provided the Court records a finding that it is expedient to do so subject to such terms and conditions as the Court, may deem appropriate. This power is to be exercised judiciously and depending upon the facts and circumstances of each case.
9. Invariably, property brought before a Court during the course of an inquiry or a trial would be case property and therefore, to decline permission, to sell on the sole ground, that the property is case property would be a negation of the provisions of Section 451 of the Cr P.C. The property being case property, is no doubt a relevant consideration but except where fact and circumstances of a case so warrant cannot be a sole circumstance, to decline permission to sell. Each case must be decided on its own peculiar facts and circumstances,
10. Applying the aforementioned principles of law, as contained in Section 451 of the Cr. P. C. to the facts and circumstances of the present case, I am of the considered view that the application for permission to sell the tractor could not have been declined on the sole ground and that it was case property.
11. A tractor is an automobile consisting of mechanical and rubber parts, which by their nature are subject to natural decay. Though the tractor has been released to the bank vide order of the Judicial Magistrate 1st Class dated 5-2-2004, it is of no use to the Bank and is lying idle. It would soon be reduced to junk. The sale of the tractor, would benefit both the bank and the accused. The bank would be able to recover a part of the loan advanced and the civil liability of the accused would stand correspondingly reduced. In my considered opinion, in the facts and circumstances of the present case, even though the tractor is a ease property expediency of the situation demands that the bank be permitted to sell the tractor subject to certain terms and conditions.
38. In SUNDARAM FINANCE LTD VS THE STATE OF TAMIL NADU AND ANR. [2011 (1) MLJ 191], the vehicle was purchased by the borrower on finance from a financier. The vehicle came to be concerned in a criminal case. Ultimately, with the consent of the borrower, interim custody of the vehicle was given to the financier. The financier sought the permission of the Court to sell the vehicle and apply the sale proceeds towards the loan amount. It was rejected by the trial Court. The financier came to this Court. Before this Court, the financier explained the need to sell the vehicle. The prosecution explained the need to keep the vehicle to mark it as a material object during trial. This Court referring to SUNDERBHAI AMBALAL (supra) permitted selling of the vehicle after taking photograph of the vehicle.
39. In Crl.R.C.(MD)Nos.74 & 75 of 2011 dated 18.10.2011 [CHOLAMANDALAM FINANCE VS STATE AND OTHERS], the financier sought the permission of the trial court to sell the vehicle since its market value has getting down and there will be huge loss. Prosecution opposed since the vehicle is needed for marking it at the time of trial. This Court referring to the scope of Section 451 Cr.P.C and SUNDARAM FINANCE (supra) granted permission to sell the vehicle.
40. It is pertinent to extract hereunder, the following observations of this Court in CHOLAMANDALAM FINANCE (supra):
"3. The learned counsel for the petitioners Mr.G.R.Swaminathan would contend that it is a known fact that if the vehicles were allowed to remain in open place and even if they were kept in a protected place, the utility and value of the vehicles will go down and to keep the vehicles till the disposal of the trial will not serve any purpose.
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6. When the Court finds that it is no longer necessary to keep the case property under the custody, it had to return the same to the person who is competent to get it. The Court is required to make an enquiry to ascertain who is the party eligible to get interim custody of the property. Likewise, if the property is of such a nature, that it would lose its value and utility, then the Court may also order for the sale of the property and direct that the proceeds be deposited into the Court. In one of such occasions arose before this Court in 2011 (1) MLJ 191 [Sundaram Finance Ltd., v. State of Tamil Nadu] C.T. Selvam,J. has expressed his view that the return of the vehicles and permission for sale thereto should be the general norm rather than the exception as it is today and in case where return of vehicles is sought and the claim therefor is highly contested, resort to sale of vehicle and credit of the proceeds in fixed deposits pending disposal of the case would be the common good. The learned Judge has also referred the decision of Sundarbhai Ambalal's case (supra) and also other decisions of the Supreme Court and reached a conclusion that none gain when the mere shell or the remnants of the vehicle are returned to the person entitled thereto, after completion of the trial, that it would no surprise to find that several vehicles have not been so much as claimed after completion of trial, because of the worthless state they have been reduced to and that it is but natural to expect that a person eventually entitled would rather have the sale proceeds together with interest, than nothing at all. I am in respectful agreement with the opinion rendered by the learned Judge."
41. Thus, power is available to the criminal courts under Section 451 Cr.P.C to give permission to the owner or to the persons entitled to sell the case-property even pending enquiry or trial, if the property is subject to speedy and natural decay or in other words, in the facts and circumstances of the case, if the Court is of the view that such permission is required to be granted. But, at the same time, in property offences and in other type of offences, where property is involved, the facts and circumstances of the case may need, production of them as material objects, as physical evidence during trial. Reading Sections 451 and 452 of Cr.P.C, it is seen that converted form of such physical evidence may also be produced before the court at the time of trial. As we have seen already in SUNDERBHAI AMBALAL (supra), the Honourable Apex Court enabled production of such converted form of evidence of case properties.
42. The Hon'ble Apex Court in SUNDERBHAI AMBALAL (supra) permitted photographing of the material object and obtaining the signature of the complainant and also of the accused thereon and keep them in the case-records to be exhibited at the time of trial. Under this category videographing also will come.
43. In SUNDERBHAI AMBALAL (supra), the Hon'ble Apex Court also visualized a situation where the accused may refuse to sign/endorse. Thus, at paragraph 24 of its judgment the Hon'ble the Apex Court observed that, "it is made clear that in case where the accused disputes that he is not involved in the alleged incident and no article was found from him then such endorsement be taken on the photograph." Thus, when the accused disputes that he is not involved in the offence or he is disputing the property or he has certain contentions as regards the property, the same shall be endorsed in the photograph, his signature shall be obtained. It is accused putting his signature with prejudice/objection. Thus, the interest of the prosecution, the interest of the property owner, the need of the prosecution to produce it as evidence during trial and the right of the accused will be protected.
44. Thus, the learned Judicial Magistrate, Thiruvottiyur in disposing of the petition of the first petitioner in Crl.M.P.No.6638 of 2013 wherein permission has been sought for to sell the case- property, has not dealt with the matter in proper perspective, in the light of the provisions of Section 451 Cr.P.C and the directions and guidance issued by the Hon'ble Apex Court in SUNDERBHAI AMBALAL (supra).
45. In view of the foregoings,
(i) The order of the learned Judicial Magistrate, Thiruvottiyur passed in Crl.M.P.No.6638 of 2013 dated 04.10.2013 is set aside.
(ii) Crl.M.P.No.6638 of 2013 is remanded back to the said Magistrate.
(iii) The learned Magistrate will obtain signature of the accused in the photograph of the case-properties.
(iv) In case, the accused makes any dispute/contention as regards the case-property, the same shall be endorsed in the photographs and his signature thereon shall be obtained.
(v) Thereafter, the learned Judicial Magistrate shall grant permission to the first petitioner to sell the case-properties.
(vi) Surety affidavit for the case-properties already produced in Crl.M.P.No.6241 of 2013 shall be treated as surety affidavit for the purpose of Crl.M.P.No.6638 of 2013 also.
46.With the above, the Criminal Original Petition is disposed of.
20.11.2013 rrg/kua Index : Yes/No Internet: Yes/No To
1.The Principal Sessions Judge, Tiruvallur.
2.The Chief Judicial Magistrate, Tiruvallur.
3.The Judicial Magistrate, Thiruvottiyur.
4.The Inspector of Police, M-2, Madhavaram Police Station, Chennai.
5.The Public Prosecutor, High Court, Madras.
Note:
As this Judgement has guidance for the Subordinate Courts with reference to scope of Section 451 Cr.P.C and also dealts with the decisions of the Hon'ble Apex Court and of the various High Courts, the Registry is directed to place a copy of this Judgment before My Lord, the Hon'ble Chief Justice for orders to circulate the same to all the Subordinate Courts in the State of Tamil Nadu and in the Union Territory of Puduchery.
P.DEVADASS.J., rrg/kua Pre-Delivery Order in Crl.O.P.No.27812 of 2013 20 .11.2013