Read Order: Ashok Gupta v. State of U.P. and Another

LE Staff

Prayagraj, August 2, 2021: While dismissing a revision petition seeking release of the amount seized by the Kanpur police on account of gambling, the Allahabad High Court has ruled that no order for custody or disposal of property could be passed in exercise of powers u/s 451 of the CrPC, if investigation was still pending.

Observing that the proceedings relating to investigation are not within the realm of either inquiry or trial, a Bench of Justice Dr. Yogendra Kumar Srivastav held that power of the court u/s 451 of the Code for passing of an order for custody and disposal of property can be invoked only during the course of an inquiry or at the stage of trial.

The record of the case indicated that an application filed by the applicant-revisionist u/s 451 of CrPC for release of the amount seized by the police, came to be refused by the Chief Metropolitan Magistrate (CMM), Kanpur, by observing that the amount recovered from the possession of applicant was used for the purpose of gambling and it was not appropriate to issue any direction for release of the amount, since the investigation was pending. 

The present case is registered under the provisions of Public Gambling Act, 1867, and in terms of the scheme of the Act, the Magistrate or the Officer authorised is empowered to search, seize and take possession of all instruments of gaming, and of moneys and security of money and articles of value, reasonably suspected to have been used or intended to have been used for the purpose of gaming which are found therein, said Justice Srivastav. 

The word “trial” though not defined under the Code is commonly understood to refer to a judicial proceeding which commences after framing of charge and concludes with either conviction or acquittal, observed the High Court. 

Opposing the application, the Government advocate had urged the HC that an order for custody and disposal of property u/s 451 of the Code can be sought only during the pendency of the trial or inquiry and not at the stage of investigation

“In terms of the provisions contained u/s 451 of the Code where 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 conclusion of the 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,” said the Bench. 

Pointing out that Section 451 would have no application unless the property is produced before the court during the inquiry or trial, Justice Srivastav noted that the said section empowers the court to make orders for interim custody for disposal of the property produced before it during an inquiry or trial. 

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