Sushila vs Union Of India & Ors.
1998 Latest Caselaw 1008 Del

JUDGMENT

Devinder Gupta, J.

1. This petition is by the widow of Dilbagh Singh. He was one of theaccused in case FIR No. 89/85 of P.S. Delhi Cant. for offences under Sections 186, 353, 332/34 and 307/34, IPC along with three others, namely Baleshwar Solanki, Ram Lal and Padam Singh. With respect to the same occurrence, another case was registered vide FIR No. 90/85 at P.S. Delhi Cant for offence under Section 27 of Arms Act, 1959 (Act No.54 of 1959) against Padam Singh, son of Subh Ram, the sole accused in that case.

2. Dilbagh Singh, the petitioner's husband was the holder of arms licence No. 61/PS/Rai/SDM/S for 32 bore revolver No. H - 108289, Make-Smith & Wessions for which FIR No. 90/85 was registered against Padam Singh. The said revolver was recovered from the possession of Padam Singh and was case property in FIR No. 90/85. Padam Singh was tried for offence under Section 27 of Arms Act in FIR No. 90/85 in the Court of Metropolitan Magistrate, New Delhi. During pendency of trial, Padam Singh expired on 27.4.1986. On 6.6.1986 proceedings against Padam Singh were dropped by the Metropolitan Magistrate by the following order:

"Report received back from the Police Station Delhi Cant. regarding the death of accused Padam Singh. It is verified by the police. Proceedings against the accused Padam Singh be dropped and file be consigned to record room.

      6.6.1986                                                                   Sd/- M.K. Gupta."
 


3.   While  disposing of the proceedings and directing the file to be  consigned  to record room, no order was passed by the Metropolitan  Magistrate with respect to disposal of the revolver. 
 

4. Trial of the other case, which was subject matter of FIR No. 89/85 proceeded in the Court of learned Additional Sessions Judge, New Delhi against four accused persons. In the said case on 28.2.1985, an application was moved before the Metropolitan Magistrate by accused Dilbagh Singh, on the strength of his arms licence stating that as the revolver had been taken possession of by the police from his custody, the same be ordered to be returned to him. On 1.3.1985, an order was passed by the Metropolitan Magistrate for return of the revolver to Dilbagh Singh on superdari of Rs. 10.000/- with the direction that the same be produced in the Court as and when directed. However, the fire arm was not taken on superdari by Dilbagh Singh pursuant to the said order. As Padam Singh expired on 27.4.1986, proceedings against him in Sessions Case No.68/86, State Vs. Baleshwar & Ors. (FIR No. 89/85 of P.S. Delhi Cant.) also stood abated. Dilbagh Singh also expired on 15.2.1990. Proceedings against him also stood abated. This fact is duly mentioned in the judgment (Annexure-C) delivered by S.S. Bal, Additional Sessions Judge, New Delhi in Sessions Case No. 69/86 (State Vs. Baleshwar & Ors.), while acquitting the other co-accused. In this case also, no order was passed by the Court for disposal of the revolver.

5. It appears that on 12.3.1987, an application was moved by S.H.O., P.S. Delhi Cant. for confiscation of the revolver stating that the accused Padam Singh in FIR No. 90/85, for offence under Section 27 of Arms Act, had expired on 27.4.1986 and the case stood decided on 6.6.1986, against which no appeal was preferred and the property involved in the case was no more required, therefore, necessary orders for its disposal be passed. On this application, the following order was passed by Mr. A.S. Yadav, Metropolitan Magistrate, New Delhi in March, 1987:

"The above property is confiscated to the State for disposal."

6. After decision of Sessions Case No. 69/86 (State Vs. Baleshwar & Ors.), the petitioner (widow of Dilbagh Singh) moved an application for return of the revolver in question. Report was called on the said application. The report of District Nazir stated that the revolver in question was confiscated to State by the order of Mr. A.S. Yadav, Metropolitan, Magistrate, New Delhi and that thereafter on the recommendation of Government of India, Ministry of Home Affairs, revolver had been delivered to Deep Chand, DCP on 17.11.1989. In view of this report, the application was dismissed on 16.4.1993 an infructuous.

7. The petitioner thereafter approached this Court by filing the instant petition on numerous grounds praying for quashing of the order passed by Mr. A.S. Yadav, Metropolitan Magistrate whereby the revolver was confiscated to State; for declaring that allocation of revolver in favour of Deep Chand, DCP was bad with further direction for deposit of revolver with District Nazir, Delhi so that the same be dealt with, in accordance with law. It is not disputed that during pendency of the petition, respondent No. 4, Deep Chand, DCP deposited the revolver with District Nazir and presently, the same is laying deposited in District Malkhana. The only question which now survives for consideration is about the legality of the order passed by the Metropolitan Magistrate directing the revolver to be confiscated to State.

8. The revolver admittedly was the case property in FIR No. 90/85. It was recovered from possession of Padam Singh, the licence holder of the revolver admittedly was Dilbagh Singh, the petitioner's husband. Padam Singh expired on 27.4.1986 and the criminal proceedings against him in FIR No. 90/85 stood abated. No order was passed by the Magistrate on 6.6.1986 regarding custody or disposal of the revolver when proceedings against Padam Singh were ordered to be dropped and file was ordered to be consigned to records.

9. Powers of the Court in the matter of disposal of the property is dealt with in Chapter XXXIV (Sections 451 to 459) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). In those cases which actually come up before the Court in an inquiry or trial, Sections 451 and 452 are applicable. Section 451 enables the Court to provide for an interim custody of the property, pending conclusion of inquiry or trial, while Section 452 provides for disposal after inquiry or trial is over. Section 457 empowers the Magistrate o pass orders for disposal of the property, which is seized by the police and not produced in the Court during inquiry or trial, whenever the seizure of property by the police has to be reported to a Magistrate under the provisions of the Code.

10. For the instant case, Sections 452 and 457 are relevant, which are reproduced hereunder:

"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 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.

(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 Sessions 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 Sub-section (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.

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 therefore, 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."

11. A bare reading of Section 452 suggests that it applies to disposal of the property, after conclusion of inquiry or trial and it refers to the property, which is produced before the Court or which is in its custody or regarding which an offence appears to have been committed or which has been used in the commission of an offence. These four classes of the property are listed disjunctively. In case the inquiry or trial has come to an end and the property falls in any of the four categories, the Court has jurisdiction to pass order for disposal under this section. The condition precedent for exercise of jurisdiction under Section 452 is that the inquiry or trial in any Criminal Court is concluded. Only on conclusion, the Court will get jurisdiction to pass an order with respect to disposal of the property, which falls in any of the four aforementioned categories. To say differently, an order for final disposal of the property cannot be passed under Section 452 prior to conclusion of the inquiry or trial. In other words, in case inquiry or trial has not concluded, but has otherwise come to an end, it cannot be said that Section 452 will come into operation. The word 'concluded' used in Section 452 obviously implies that it is the ultimate and final conclusion either by way of conviction, acquittal or discharge. Abatement of proceedings because of death of the sole accused cannot be termed as conclusion on inquiry or trial thereby investing the Magistrate with jurisdiction to deal with the property under Section 452 of the Code.

12. The power under Section 457 can be exercised at the stage of investigation irrespective of the question whether the property is produced before the Magistrate or not and irrespective of the question whether the Magistrate is competent to hold inquiry or trial of the case involving the property. Once the property is sent to the Court with charge-sheet, the same will not continue to remain the subject matter of Section 457 of the Code. In that case it is Section 452 only, which will apply inasmuch as on conclusion of the trial or inquiry, property will have to be dealt with under Section 452 of the Code. Section 452, therefore, applies to all properties produced before the Court in an inquiry or trial where inquiry or trial has been concluded. It cannot apply where there has been no inquiry or trial. In that case it has to be assumed that there has not been conclusion of inquiry or trial. It is a stage prior to conclusion of the inquiry or trial. In those cases the proper section to apply would be Section 457, which empowers the Magistrate to deal with the seized property. Under Section 452 of the Code, Magistrate is empowered to make an order directing disposal of the property or its delivery to a person entitled to possession thereof. In case such person cannot be ascertained or be unknown, the Magistrate is empowered to detain the property and issue a proclamation specifying the articles and requiring any person, who may have a claim thereto, to appear before him and establish his claim within six moths from the date of such proclamation whereafter Section 458 shall come into operation.

13. As noticed above, in the instant case neither proper procedure was followed nor proper provision of law was applied by the concerned Magistrate. The property was dealt with in a mechanical manner. It was ordered to be confiscated to the State without ascertaining the person entitled to possession of the property. The order was also passed without any notice to the person likely to be affected. Such order is liable to be quashed and set aside. The property is covered by definition of arms. It is governed by Arms Act, 1958. The same is lying deposited in Malkhana. As such, no other or further direction deserves to be issued in this petition regarding disposal of the revolver, while quashing the impugned order, except that the Competent Authority will deal with its disposal, in accordance with law, within a period of three months from the date of receipt of this order. Ordered accordingly.

The petition stands disposed of.