Though this be law, yet there is justice in it

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 introduces a structured legal framework for the custody, disposal, and restoration of property involved in criminal cases. These provisions ensure that property seized during investigations or trials is handled appropriately while safeguarding the rights of rightful owners. Whether it concerns movable or immovable property, perishable items, or stolen goods, the BNSS lays down clear guidelines for their custody, sale, confiscation, or return.

When can a Criminal Court or Magistrate make an order regarding the custody of property?

When any property is produced before a Criminal Court or a Magistrate empowered to take cognizance or commit the case for trial during any investigation, inquiry, or trial, the Court or Magistrate may make an order for the proper custody of such property pending the conclusion of the investigation, inquiry, or trial.

What can the Court or Magistrate do if the property is subject to speedy and natural decay?

If the property is subject to speedy and natural decay or if it is otherwise expedient, the Court or Magistrate may, after recording necessary evidence, order the property to be sold or otherwise disposed of.

What does “property” include?

Property includes:

• Any kind of property or document produced before the Court or in its custody.
• Any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

What must the Court or Magistrate do within fourteen days of the production of the property?

The Court or Magistrate must prepare a statement of the property containing its description in the form and manner prescribed by the State Government.

What visual documentation must be taken for the property?

The Court or Magistrate must ensure that a photograph and, if necessary, a videograph on a mobile phone or other electronic media is taken of the property.

Can the statement and visual documentation be used as evidence?

Yes, the statement and the photograph or videography taken shall be used as evidence in any inquiry, trial, or other proceeding under the BNSS.

Within what timeframe must the Court or Magistrate order the disposal of the property?

Within thirty days after preparing the statement and taking the photograph or videography, the Court or Magistrate must order the disposal, destruction, confiscation, or delivery of the property.

What orders can a Court or Magistrate pass regarding property at the conclusion of an investigation, inquiry, or trial?

The Court or Magistrate may order the disposal of any property by destruction, confiscation, or delivery to any person claiming to be entitled to possession.

Can the Court impose conditions on the delivery of the property?

Yes, the Court may order delivery of the property with or without conditions, including requiring the recipient to execute a bond with or without securities to restore the property if the order is modified or set aside on appeal or revision.

What can a Court of Session do instead of making an order itself?

A Court of Session may direct the property to be delivered to the Chief Judicial Magistrate, who will then deal with it as per the provisions of the BNSS.

When does an order for disposal of property not take effect immediately?

If the property is not livestock or subject to speedy and natural decay, or if a bond has been executed, the order will not be carried out for two months or until an appeal is disposed of.

What is the relevance of title over the property in restoring it to an accused person?

The restoration of property to a person from whose custody it was taken is subject to ownership disputes. The normal rule of practice and exceptions to it were explained in BSNL v. Suryanarayanan, (2020) 12 SCC 637.

When can an innocent purchaser of stolen property claim compensation?

If a person is convicted of theft or receiving stolen property, and it is proven that another person bought the stolen property without knowing it was stolen, the Court may order a refund from the money taken from the accused during the arrest.

What is the maximum amount that can be refunded?

The refund cannot exceed the price paid by the innocent purchaser for the stolen property.

Within what time must the refund order be executed?

The sum must be delivered to the innocent purchaser within six months from the date of the order.

Who can appeal against an order made under the disposal of property provisions?

Any person aggrieved by such an order may appeal to the Court where appeals ordinarily lie from convictions by that Court.

What powers does the Appellate Court have?

The Appellate Court may stay the order, modify, alter, annul it, or make any further orders as deemed just.

Can other courts also exercise appellate powers over these orders?

Yes, Courts of appeal, confirmation, or revision can exercise the same powers while dealing with the case in which the order was made.

When can a Court order the destruction of libellous materials or any other items?

On conviction under some specific provisions of the Bharatiya Nyaya Sanhita, 2023, the Court may order the destruction of all copies of the material. The Court may also order the destruction of food, drink, drugs, or medical preparations involved.

When can a Court restore possession of immovable property?

If a person is convicted of using criminal force, show of force, or criminal intimidation to dispossess someone, the Court may order possession to be restored.

What is the time limit for making such an order?

The order must be made within one month of the conviction.

Can an appellate Court make such an order if the trial Court did not?

Yes, the Court of appeal, confirmation, or revision can pass the order while disposing of the case.

What can a Magistrate do when a police officer reports a seizure?

If the seized property is not produced before the Court, the Magistrate may decide on its disposal or delivery.

What happens if the rightful owner is unknown?

The Magistrate may issue a proclamation requiring claimants to appear within six months.

What happens if no one claims the property within six months?

The Magistrate may order the property to be at the disposal of the State Government for sale.

Can this order be appealed?

Yes, an appeal can be filed in the Court where appeals against Magistrates’ convictions usually lie.

When can the Magistrate order the sale of property?

If the property is perishable, or if its sale benefits the owner, or if its value is less than ₹10,000, the Magistrate may order its sale.

Therefore, the provisions regarding the disposal of property under the Bharatiya Nagarik Suraksha Sanhita, 2023, aim to maintain a balance between justice, efficiency, and fairness. By setting clear guidelines for handling property before, during, and after a trial, the law ensures that rightful owners are protected while preventing misuse or misappropriation. The requirement for photographic and videographic documentation enhances transparency and accountability in the process. As the country transitions to this updated legal framework, these provisions will contribute significantly to ensuring the swift and just disposal of property in criminal cases, strengthening the overall criminal justice system.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.