Trial Court Has Power To Modify Orders Of Custody & Disposal Of Property Pending Trial U/S 451 CrPC As Per Changed Circumstances: Delhi High Court

The Delhi High Court has observed that the Trial Court would not be powerless to modify orders of custody and disposal of property pending trial as provided under sec. 451 of the Code of Criminal Procedure, as per changed circumstances.

Justice Asha Menon added that the power to modify orders passed under sec. 451 Cr.P.C. is inherent in the provision as the purpose is only safe custody and production "during trial".

"There can be no doubt, an order under Section 451 Cr.P.C. is of an interlocutory nature, since the whole purpose is for safe custody of the goods/property during the pendency of the trial, as it is Section 452 Cr.P.C. which would come into play, when the goods/property is to be disposed of at the conclusion of the trial. The Trial Court would not be powerless to modify orders of custody as per changed circumstances. The Trial Court has the powers to recall entrustment, as held in Smt. Anisa Begum (supra)," the Court observed.

The petition was filed by the complainant in an FIR registered under sec. 380, 406, 420, 506 and 120B IPC being aggrieved by the impugned order dated 14th January, 2021 passed by the Chief Metropolitan Magistrate, Patiala House Courts.

It was the submission of counsel for the petitioner that the Chief Metropolitan Magistrate had reviewed his earlier order dated 20th August, 2020 without any power to do so. Vide order dated 20th August, 2020, 8 moulds being seized by the police were ordered to be released to the petitioner, whereas vide the impugned order, the petitioner was directed to surrender the released moulds within 7 days. Further, the Investigating Officer was directed to take possession of the same.

Subsequently, the respondent No.2 had filed an application dated 28th September, 2020 for directions to the petitioner to deposit the moulds with the Investigating Officer. The Chief Metropolitan Magistrate heard both sides and it was observed in the impugned order that the order dated 20th August, 2020 had apparently been passed assuming that M/s S.S. Manufacturing was still in existence where the petitioner was still a partner and being the complainant, he was granted superdari of 8 moulds, also recording that this was in the absence of any representation from the respondent No.2.

Since both sides were staking a claim to the ownership rights of the moulds, the Chief Metropolitan Magistrate had concluded that till the rights of the parties crystallized through adjudication process, the property should be kept in the exclusive possession of the Investigating Officer.

While noting that a decision under sec. 451 Cr.P.C. would be as per the discretion of the court which has to be judiciously exercised, the High Court observed thus:

"The purpose of handing over custody of the goods/property is to enable its production before the court during trial. Such custody is kept by the superdar only on behalf of the court. The superdar is bound to produce the property as and when so directed by the court. The court of course has the right to recall such entrustment."

The Court also noted that there could be circumstances where the superdar is not in a position to keep the custody of the goods or property and seeks to surrender it into the court.

In this backdrop, the Court was of the view:

"Would the Trial Court be powerless to hand it over to some other person on the same terms as earlier or on different modified terms? Similarly, where the court finds that the initial order was passed on account of certain mistaken notions, as in the present case, that the partnership firm was in existence and the petitioner alone had a right to the moulds and also in view of the fact that the respondent No.2 who also had an equal status as a partner in the erstwhile partnership firm to claim custody, was denied even a hearing, it cannot be said that the modification of this interlocutory order would be possible only, by approaching the High Court under Section 482 Cr.P.C."

"Orders that would only smoothen the process of trial cannot be rendered so complicated. In fact, the power to modify orders passed under Section 451 Cr.P.C., is inherent in the provision as the purpose is only safe custody and production "during trial". This is unlike the orders of summoning in respect of which Adalat Prasad (supra) and subsequent judgments have held that recall of orders is not possible."

Accordingly, the Court upheld the impugned order and the plea was dismissed.

Case Title: SANDEEP SINGH v. STATE OF NCT OF DELHI & ANR.

Citation: 2022 LiveLaw (Del) 471

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