Karnataka HC Issues Guidelines To Trial Court For Release Of Property Like Mobile Phones, Laptops Seized During Criminal Case Investigation

The Karnataka High court has issued model guidelines to be followed by the trial courts while dealing with release of the seized properties either under Section 451 and 457 Cr.P.C., or under Section 497 of BNSS, till the State Government issues directions in this regard.

A single judge bench of Justice V Srishananda in its order said, “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.”

“Till such time, the directions issued by this Court would serve as model guidelines for the Trial Magistrate,” it added. The high court however said that these directions are "only indicative and not exhaustive" and would "serve and guide" the power to be exercised by the Trial Magistrate or Revisional Courts as the case may be.

The directions are as follows:

(1) Description of the seized property shall be incorporated in the seizure mahazar (document) 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, hallmark, 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 initialling 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, the 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/Learned Sessions Judges are hereby directed to ensure the disposal of the property in respect of Narcotic 33 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, fingerprint 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 accidents 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 36 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.

The directions were passed by the high court while allowing the petition of one Vishal Khatwani who had sought for release of the electronic gadgets, stolen from his shop which were later recovered and kept with the police. The trial court had rejected his application, against which he moved the high court.

On going through the records, the bench noted that the Investigating Agency failed to incorporate the value of the seized material objects in the First Information Report itself. When the properties were placed before the Trial Magistrate by way of a Property Folio Memo again the value of the property was not at all shown, it said.

The high court thereafter held “The learned Trial Magistrate permitted the seized property to be retained by initialling the said P.F. Memo on 06.10.2023, without application of judicial mind". The bench observed that there

Noting that there was no rival claim in respect of the seized property the bench said, "Thus, in the absence of the rival claim, all that the learned Trial Magistrate was required to consider was, if the material objects are returned to the applicant who is none other than the complainant, would it hamper the investigation and whether those material objects would be available for identification during the trial.”

The court further observed that the seized properties could have been released in favour of the applicant with conditions like taking the photographs and retaining the documents pertaining to the seized material objects and indemnity bonds/bank guarantee to the extent of the value of the seized property.

Keeping in mind the facts and circumstances of the case, the high court set aside the trial court order and allowed the petition by directing the petitioner to execute an indemnity bond of Rs.40,00,000 for seeking interim custody of the electronic items.

Case Title: Vishal Khatwani AND State of Karnataka

Counsel for Petitioners: Advocate Pruthveen P Kattimani for Advocate Giridhar H

Counsel for Respondents: SPP B A Belliyappa along with HCGP Vinay Mahadevaiah

Citation No: 2024 LiveLaw (Kar) 437

Case No: CRL.RP No.210/2024

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