Confiscation of property should not be ordered as a measure of punishment and should only be resorted to in the absence of a proper claimant.

1. These two revisions arise against orders dismissing petitions under section 451 Cr.P.C. The revision petitioner in Crl.R.C.No.1699 of 2011 is accused of offence under section 302 IPC in case pending committal in P.R.C. No.5 of 2011 on the file of Judicial Magistrate No.II, Krishnagiri. He is accused of having used a lorry to cause the death of his wife. The revision petitioner in Crl.R.C.No.1766 of 2011 is accused of having committed offences under Sections 279, 323 and 307 of IPC and of having tried to cause the death of the informant in the case, by dashing his motorcycle against him. In the first case, the Court below has dismissed the petition informing that the lorry was materially needed during the course of trial and investigation and that if custody was granted, there was a chance of destruction thereof. In the next, the Court below dismissed the petition on the reasoning that the vehicle was a material object in the case and that the case was a serious one. Some interesting questions arise for consideration.

2. The Hon'ble Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat, (2003 (1) CTC 175) and General Insurance Council and others v. State of Andhra Pradesh and others, (2010) 6 SCC 768, has informed the need for passing orders of custody of vehicles, inter alia towards avoiding their going to seed by exposure to sun and rain as also through intervention of manual agency. Would the principles enunciated in these cases also enure to the benefit of accused persons?

3. The Supreme Court has indicated that vehicles need not be produced in court and in lieu thereof secondary evidence could be read. Photographs may be taken, duly authenticated and certified and detailed panchnama may be prepared. The photographs so taken may be used as secondary evidence during trial. If the answer to question one above is in the affirmative, then could not the same procedure be adopted also in respect of vehicles owned by accused persons?

4. If secondary evidence is permitted to be read in lieu of production and marking of vehicles, can return of vehicle be absolute and not merely by way of interim custody in cases where there is no dispute regards ownership? Would doing so, trample upon powers of court to direct confiscation of the conclusion at proceedings under Section 452 Cr.P.C.?

Section 452 Cr.P.C. reads as follows:

"452.) Order for disposal of property at conclusion of trial.-(1) When an inquiry or trial in any Criminal Court is concluded, the court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond with or without sureties, to the satisfaction of the court, engaging to restore such property to the court if the order made under subsection

(1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally