Karnataka HC Guidelines To Magistrates On Release Of Seized Properties U/S 451 & 457 Of CrPC

In a major breakthrough, it would be imperative to note that the Karnataka High Court in a most progressive, pragmatic, pertinent and persuasive step with far reaching implications in a most learned, laudable, landmark, logical and latest judgment titled Vishal Ramesh Khatwani vs The State of Karnataka in CRL.RP No.210/2024 and cited in 2024 LiveLaw (Kar) 437 that was pronounced as recently as on October 4, 2024 has issued detailed guidelines for Magistrates pertaining to the release of seized properties like mobile phones, laptops seized during criminal case investigation under Sections 451 and 457 of the Criminal Procedure Code (CrPC) or under Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) till the State Government issues directions in this regard. It must be disclosed here that the High Court was dealing with a criminal revision petition that had been filed under Section 397 of the CrPC seeking reliefs. It must be noted that the High Court deemed it entirely fit to allow the revision petition and issued a plethora of most commendable directions for Magistrates that have to be followed most punctually while dealing with the release of the seized properties under Section 451 and Section 457 of CrPC!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice V. Srishananda sets the ball in motion by first and foremost putting forth in para 1 that, “This revision petition is filed by the applicant under Section 397 Criminal Procedure Code, 1973 with the following prayer:

Whereof the Petitioner respectfully prays that this Hon’ble Court be pleased to:

“i) call for the Records connected with the Order dated 09.11.2023 made by the learned VIII Additional Chief Metropolitan Magistrate, in Crime No. 256/2023 and examine the same and set aside the Order dated 09.11.2023 and allow the application dated 03.11.2023. ii) and grant such other relief as this Hon’ble Court deems fit under the circumstances of the case including cost of this proceedings in the interest of Justices.”

To put things in perspective, the Bench envisages in para 2 that, “Facts in brief which are utmost necessary for disposal of the revision petition are as under:

Upon the complaint lodged by Smt. Komathi, W/o Nagesh, a case came to be registered in Cr.No.256/2023 by Sanjay Nagar Police for the offence punishable under Section 380 and 457 IPC.”

Be it noted, the Bench then notes in para 45 that, “Further, 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.”

Quite significantly, it is worth noting that the Bench notes in para 46 that, “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.”

Most significantly, the Bench then encapsulates in para 47 what constitutes the cornerstone of this notable judgment postulating that, “As such, the following directions are issued which would cover in general the disposal of the properties as is contemplated under Section 451 and 457 of Cr.P.C., and presently under the provisions of Section 497 of Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short).

Directions/Guidelines:

(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). It shall accompany the P.F. Memo when it is placed before the learned Trial Magistrate.

(4) Trial Magistrate shall verify the contents of mahazar with aforesaid 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 learned 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) Learned 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) Learned Trial Magistrates/leaned Sessions Judges are hereby directed to ensure the disposal of the property in respect of Narcotic drugs and psychotropic substances as per the directions of the Hon’ble Supreme Court in the case of Union of India vs. Mohanlal and another, reported in (2016) 3 Supreme Court Cases 379. (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 learned Trial Magistrate while disposing the application filed under Section 451 and 457 Cr.P.C., or under Section 497 of BNSS.

(12) In respect of the electronic and digital material objects, the learned 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 learned 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 learned 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., learned 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.”

For sake of clarity, the Bench then clarifies in para 48 propounding that, “These directions are only indicative and not exhaustive and would serve and guide broadly the power to be exercised by the learned Trial Magistrate or Revisional Courts as the case may be in disposal of the seized properties under Section 451 and 457 Cr.P.C., and 497 of BNSS.”

Finally, the Bench then concludes by expounding in para 49 directing that, “In view of the above discussion, following order is passed:

ORDER

Criminal Revision petition is allowed.

The application filed by the applicant seeking interim custody of the above referred material objects is allowed on following conditions:

(1) Revision petitioner shall execute an indemnity bond to the tune of Rs.40,00,000/-.

(2) Revision petitioner is hereby directed to take the photographs and videographs of the seized material objects, for which the Investigating Agency shall cooperate and produce the same before the Court in a pen drive.

(3) Revision petitioner shall not alter the identity of the seized material objects and in case, if there is a deterioration in value, may apply for sale of the material objects after the same is identified before the Court of law by examining the mahazar witnesses inasmuch as the charge sheet is already filed.

(4) If any such application is made, learned Trial Magistrate is at liberty to pass appropriate order.

(5) Revision petitioner shall produce the material objects as and when directed.”

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