This article is written  by Rimjhim Vaishnavi,  a student of NUSRL.

Introduction

It is a general process by police that during any investigation or enquiry they seize any property which they think is evidence and will be helpful in the process of trial, that property includes those from the crime has been conducted or for which the an offence has been committed. The property also includes the money which has been stolen and has recovered. The main question which arises in a prudent person’s mind is that, what next? How to get back the property? If a person waits for the trial to be over it might take one year, five years or ten years, so no one can wait for so long. Hence, the basic rule relating to the disposal of property which generally people are aware is that, one can only get back its property after the trial has concluded. However, under the Code of Criminal Procedure, 1973 there is a provision which allows a person to get back the possession of the property temporarily, which was seized.

 Provision relating to the disposal of property under Code of Criminal Procedure

The Code of Criminal Procedure has given power to the courts relating to the disposal of properties which are in dispute, which is dealt under Sec.451, Sec.452, Sec.456, Sec.458, and Sec. 459. These provisions give the court power to dispose property after the trial has been concluded as the court thinks fit either by destruction, confiscation or by delivery to the person claiming it. The court also has the power to sell the goods which are perishable if the possessor of such property is unknown.  Also in property with regards to which the owner is unknown and the possessor of the property is unable to show that it legally acquire it then it is also disposed by the State Government. All these orders are passed by the Magistrate and according the order the police works. The provision prohibits the police to dispose the property of its own. Infact in the case of search and seizure the police requires the police permission.

These provisions are known by many people, but the thing which remains unknown is that CrPC also has provisions relating to disposal of property for which the inquiry or trial is pending or is still under process. Which benefits the owner or the possessor of the property to use its property or to have its possession during the trial is going on. Hence, the main zest of all these provisions is to decrease the inconvenience of the person during trial.

Provisions  relating to the disposal of property while the trial is pending under Sec. 451 of CrPC

Sec.451 particularly deals with the power of court regarding the disposal of those goods and properties for which the trial is pending. Sec.451 states that, when any property is presented before a Criminal Court during its inquiry or trial, before the trial is completed the court has the power to make and pass any order which it thinks fit for the custody and disposal of the property. In case the property is subject to decay then the court after keeping required evidence can sell it or dispose it.

• Meaning of property

Under this section, the meaning of property includes all the types of property and documents which has been produced before the court and which is under the custody of court. It also includes the property which has been used to commit an offence or regarding which an offence has been committed. In the case of Sunderbai Ambalal Desai v. State of Gujarat[1], where the apex court stated that the order regarding the custody of goods during the trial of the court is applicable to all the categories of property.

• How to apply for the custody or possession

A person can either file an application by himself before the court or can authorise someone to file an application on behalf of you to the court for the custody of the property. After filing an application one has to comply with all the directions which have been issued by the court. Apart from the application one has to provide as annexure the document of the title of the property, it also applies to those properties which have been seized by the police during the time of investigation and enquiry, but they can be released only in exceptional situations.

Sec.451 of the CrPC deals with recovery of property stolen, received or is being used as evidence in a case during the enquiry or for which the trial is pending or the trial has not been conclude. Any person can under this sec. acquire the custody and possession of the property through the provision of Superdari, which is based on the surety bond.

Meaning of Superdari/Sapurdari

Superdari or Sapurdari means disposal of property which is related to the offence, to the person entitled of it on surety bond provided that the person will have to produce that property whenever the court required. The provision of Superdari states that the property is handed to the person by the court from whose custody it was taken, unless there are any contrary claims. The order regarding Superdari has to be passed by the magistrate only after that the police can further proceed. Superdari basically means to hand the custody of a property to someone till the trial is being processed. It is a temporary process. Sapurdari was used to recover money in the case of Balbir Singh v. Commissioner of Income-tax[2]

With every power there are some restrictions, same goes with it one gets the possession of property with is subjected to certain terms and conditions, which has been established by the court.

• Surety Bond under Superdari

The first thing which one has to do apart from complying with other directions of court is to provide a surety bond. Surety bond is a type of undertaking by the possessor of the property, which is produced before the court. On accepting the undertaking, one ensures the whole liability of the property on temporary basis according to which the court pass an order granting the custody or the possession of the property. The surety bond has to be made on non-judicial stamp paper of Rs. 100.

After the order of Superdari is passed, one has to collect dash copy of the order and present it before the police so that one gets the custody of the property.

Conclusion

Criminal Procedure Code provides some relaxation to the people from the hectic process of trial in relation of retaining the possession of property through Sections 451 and 452, but both these sections does not apply to cases where the during the trial, accused has died[3] . The provision also states that the accused should not be handed the property seized until the case is finally disposed. Apart from the disposing power the court also has the power to retain the property given under Superdari, if the court feels that the possessor is not taking proper care is which required for the property or if he/she is misusing the property, hence this is the one of the reason why the property disposed under Sec.451 is temporary. After acquiring the custody of the property one is mandated to comply with other directions of the court which includes presenting the property in the court whenever it is required for the trial.

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[1] (2000) SCC 143

[2] (1984), 146 ITR 266 ,P.H.

[3] Keshar Singh v. State of Bihar; (2011) 5 SCC 324