Holding

The order of confiscation was illegal; property not used in an offence must be restored to the accused, and the discretion under Section 517 CrPC must be exercised judicially with reasons.

Summary

N. Madhavan was charged under Section 302 IPC for killing a person with his licensed 12‑bore gun. He successfully pleaded self‑defence, invoking Section 96 IPC, and the Sessions Judge acquitted him. However, the judge ordered the gun to be confiscated to the Government without giving any reasons or hearing the accused. The Kerala High Court upheld the order, and the matter reached the Supreme Court on special leave. The Court examined Section 517 of the Criminal Procedure Code (now Section 452(1) of the 1973 Code) and held that the gun, being property seized from the accused and not used in the commission of an offence, fell under class (b) and should normally be returned to its owner. The Court emphasized that the discretion under the provision must be exercised judicially, with reasons and an opportunity to be heard, and that arbitrary confiscation is impermissible. Consequently, the Supreme Court set aside the confiscation order and directed that the gun be restored to Madhavan, allowing the appeal.

Issues considered

Whether a court may confiscate a licensed firearm belonging to an accused who has been acquitted on the ground of self‑defence under Section 96 IPC.
Whether Section 517 of the Criminal Procedure Code (now Section 452(1) CrPC) permits confiscation of property that was not used in the commission of an offence.
Whether the discretion conferred by Section 517 CrPC must be exercised with reasons and a hearing, and cannot be exercised arbitrarily.

Legislation cited

Subjects

self-defenceconfiscationcriminal procedureproperty disposaljudicial discretionacquittallicensed firearmSection 517 CrPCSection 96 IPC

Judgment

228

N. MADHAVAN
v.
STATE OF KERALA
'

August 7, 1979

8 [R. S. SARKARIA, P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ.]
Criminal Procedure Code, 1898 Section 517 [1973 Code Section 452(1)]-
Disposal of property seized at conclusion of trial-Accused given the protec-
tion of Section 96 Penal t~ode accepting the plea of self defence-Legaluy of
the order confiscating to Government of M.O. 1, licensed gun surrendered by
the accused.

Accepting the plea of self defence, the Sessions Judge held that the accused
wa-, entitled to the protection of Section 96 Penal Code and had therefore com-
mitted no offence. However he ordered confiscation to Government of M.0.1,
the licensed gun surrendered by the accused. A revision petition filed against
the said direction having failed before the Kerala High Court, the appellant
obtained special leave from this Court.
D Allowing the appeal, the Court
HELD : 1. The impugned order of confiscation of the gun being arbitrary and
unjust, cannot be sustained. (a) The Sessions Judge did not give any reason,
whatever, for directing confiscation of this licensed gun admittedly belonging to
the appellant accused. There was no material before him indicating the special
circumstances which would warrant a departure from the general rule. There
was nothing on the record to show that the Sessions Judge had, before passing the
order of confiscation, given an opportunity of being heard to the accused specifi·
cally with regard to this matter; (b) there was absolutely no material before the
High Court to show that in the past twenty years during which the appellant had
been in lawful possession of this gun under a licence, he had ever used or attempt·
ed to use this gun for commission of any offence from which, in the event of
the gun being restored to the appellant, a likelihood of his misusing the gun
F "again" could be reas?nably predicated or even suspected. [232B·D & E·F]
l'ushkar Singh v. State of Madhya Bharat, A.I.R. 1953 SC 508, followed.
Lalluram Mohan/al v. State of Gujarat, A.I.R. 1967 Guj. 268; approved.
2. An analysis of the provision in Section 517 of the Code of Criminal
Procedure, 1898 would show that it refers to property or document (a) which
is produced Defore the Court, or (b) which is in the custody of the Court, or
(c) regarding which any offence appears to have been committed, or (d) which •'
has been used for the commission of any offence. Then, at the conclusion of
the enquiry or trial, the disposal of anv da"is of the property listed above, may
be made by (i) destruction, (ii) confiscation, or (iii) delivery to any person
entitled to be possession thereof. [23 ID-E]

In the instant case, the gun in question does not fall either under class (c)
or class (d) because it is neither property 1'regarding which any offence appea~
to have been committed", nor "which has been used for the commission of any
N. MADHAVAN v. KERALA (Sark.~ria, !,) 229

offence". The acquittal of the accused on the ground that this gun was used in A
causing the fatal injury to the deceased, only in self-defence, necessarily involv·
ed a finding that the gun was not used in the commission of any offence for
which the accused was tried. The gun was obviously property falling under

.. class (b). [231 E-G]
3. The words "may make such order as it thinks fit" in the section, vest the
Court with a discretion .to dispose of the property in any of the three modes B
speci'6ed in the Section. But tbe exercise of such discretion is inherently a judi-
) cial function. The choice of the n1ode or manner of disposal is not to be n1ade
arbitrarily, but judicially in accordance with sound principles founded on reason
and justice, keeping in view the class and nature of the property and the mate-
rial before the Court. One of such well recognised principles is that when after
an inquiry or trial the accused is discharged or acquitted, the Court should nor-
n1ally restore the property of class (a) or (b) to the person from whose custody C
it \vas taken. Departure from this salutary rule of practice is not to be lightly
made, when there is no dispute or doubt-as in the instant case-that the pro-
p·~rty in question was seized from the custody of such accused and belonged
to him. [231G-H, 232 A-BJ
'
Arujun Padhy and Ors. v. State of Orissa & Anr. A.I.R. 1965 Orissa 198;
dis~pproved. D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 155 of
1973.
Appeal by Special Leave from the Judgment and Order dated
9-11-1972 of the Kerala High Court in Criminal Revision Petition
..I No. 393/72. E
N. Sudhakaran for the Appellant.
K. R. Nambiar for the Respondent.
The Judgment by the Court was delivered by
SARKARIA, J. Appellant before us was tried by the Sessions
Judge, Palghat on a charge under Section 302, Indian Penal Code, F
for shooting dead with his 12 bore licensed gun, one Bhaskaran alias
Vasu on April 1, 1971. On the same day after the occurrence, the
appellant surrendered at Police Station Koyalmannam, along with his
licensed gun which lie liad used in shooting the deceased.
At the trial, accused Madhavµn set up a plea of self-defence. In
G
the light of the evidence brought on record, the Sessions Judge accept-
ed this plea and held that the accused was entitled to the proteetion
of Section 96, Penal Code, and had therefore committed no offence:
At the same time, without assigning any reason, he directed that
"M.0.1 gun shall be confiscated to the Government''.
Against this direction of confiscation of the gun, Madhavan filed II
Criminal Revision No. 392 of 1972 in the High Court. The Revision
was dismissed by a learned Single Judge with these observations :
230 SUPREME COURT REPORTS (1980] 1 S.C.R.

A
"Although the direction is not accompanied by suffi-
cient grounds for doing so, I do not think i~ proper to
interfere with the order passed by the learned Sessions
Judge............. in an order under Section 517, Cr.P.C.
the principle is that it should be returned to the persOR
B from whose custody it was seized. That of course is the
general rule. I am aware that there is no other claimant
for the gun in this case and the gun naturally belongs to
the petitioner. But the order of confiscation is made by
way of sufficient safeguard against its use again by the
petitioner. I do not think it necessary to interfere witlt
c the order of the Court below."
Aggrieved by this order, dated November 9, 1972, of the Higk
Court of Kerala, Madhavan has come in appeal by special leave
under Article 136 of the Constitution. '
The short question for decision in this case is, whether in the
D circumstances of the case, the Courts below were right in confiscat-
ing this license.! gun instead of rtlltoring it to the appellant.
Mr. Sudhakaran, learned counsel for the appellant submits that
the iinpugned order of confiscation of the gun was illegal because it
has been inade arbitrarily without assigning any reason. It is em-
E phasised that in exercising its power under Section 517, Criminal
Procedure Code, 1898, the Court has to act judicially in accordance
with well~ettled principles, the most fundamental of which is that
at the conclusion of the trial, resulting in acquittal of the accused, the
property seized from his possession must be restored to him, parti-
., cularly when the property undisputedly belongs to the accused. In
support of this contention, reference has been made to Pushkar Singh
v. State of Madhya Bharat( 1) and Lallumm Mohan/al v. State of
Gujarat.(')
As against this, Mr. Nambiar, appearing for the State, maintains
that there is no hard and fast rule, that the property seized from the
G accused, must on his acquittal be returned to him. The Section, it is
emphasised, gives the Court a very wide discretion to choose any
one of the modes of disposal mentioned in the section, irrespective
of whether the trial results in acquittal or conviction of the accused.
In the instant case, it is argued, the Court in the exercise of that dis-
cretion decided to confiscate the gun, which is one of the modes re-
B
(!) AIR 1958 SC SOS.
(2) AIR 1967 Guj. 268.
N. MADHAVAN v. KERALA (Sarktiria, I.) 231

cognised by the Seetion. The impugned order therefore, could not
be said to be without jurisdiction which would warrant interference
by a revisional or appellate Court. In this connection, counsel cited
Arjun Padhy and Ors. v. State of Orissa & Anr.(')
The material part of Section 517 of the Code of Criminal Pro-
cedure, 1898 (which has has been re-enacted as Section 452(1) in B
the Code of 1973), reads as follows:

"When an inquiry or trial in any Criminal Court is con-
cluded, the Court may make such order as it thinks fit· for
the disposal, by destruction, confiscation or delivery to iny
person claiming to be entitled to possession thereof or c
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
co1nmission of any offence."

An analysis of this provision would show that it refers to pro- D
perty or document (a) which is produced before the Court, or (b)
which is in the custody of the Court, or (c) regarding which any
offence appears to have been committed, or ( d) which has been
used for the commission of any offence. Then, at the conclusion of
the enquiry or trial, the disposal of any class of the property listed
above, may be made by (i) destruction, (ii) confiscation. or (iii) E
delivery to any person entitled to be possession thereof.
In the case before us, the gun in question does not fall "either
under class (c) or class (d) because it is neither property" regarding
which any offence appears to have been committed, "nor, which has
been used for the commission of any offence." The acquittal of the F
accused on the ground that this gun was used in causing the fatal in-
jury to the deceased, only in self-defence necessarily involved a find-
ing that the gun was not used in the commission of any offence for
which the accused was tried. The gun was obviously property falling
under class (b).
G
The words "may make such order as it thinks fit" in the Section,
vest the Court with a discretion to dispose of the property in any of
the three modes specified in the &~ction. But the exercise of such
discretion is inherently a judicial function. The choice of the mode or
manner of disposal is not to be made arbitrarily, but judicially in
accordance with sound principles founded on reason and justice, H
(!) AIR 1965 Orissa 198.
16-475SCI/79
1

232 surREME COURT REPORTS [ 1980] l s.c .R. 1
A keeping in view the class and nature of the property and the material
before it. One of such well-recognised principles is that when after
an inquiry or trial the accused is discharged or acquitted, the Court
should normally restore the property of class (a) or (b) to the per-
son from whose custody it was taken. Departure from this salutary
B rule of practice is not to be lightly made, when there is no dispute
or doubt-as in the instant case-that the property in question was
seized from the custody of such accused and belonged to him.
Let us now test the impugned order in the light of these principles.
Can it be said to be an order made judicially? The answer is un-
hesitatingly 'No'. The Sessions Judge did not give any reason,
c whatever, for directing confiscation of this licensed gun admittedly
belonging to the appeflant-accused. Nor was there any material be-
fore him indicating the special circumstances which would warrant a
departure from the general rule aforesaid. Nor is there anything on
the record to show that the Sessions Judge had, before passing the
D order of confiscation, given an opportunity of being heard to the
accused, specifically with regard to this matter. The order of con-
fiscation of the gun was mainfestly arbitrary.
The High Court also,-if we may say so with respect-while
noting that the order of confiscation of the gun passed by the Ses-
E
sions Judge was "not accompanied by sufficient grounds," endorsed >
that .order in a capricious and cavalier manner, "by way of"-as it
fancifully says-"sufficient safeguard against its use again by the
petitioner". There was absolutely no material before the High Court
to show that in the past twenty years during which the appellant had
been in lawful possession of this gun under a license, he had ever
F used or attempted to use this gun for commission of any offence,
from which, in the event of the gun being restored to him, a likeli-
hood of his misusing the gun "again" could be reasonably predicated,
or even suspected.
For all the foregoing reasons, we are of opinion that the impugn-
ed order of confiscation of gun being arbitrary and unjust, cannot bo
G
sustained. We therefore, allow this appeal, set aside the impugned
order and direct that possession of this gun (M.0.1) be restored to
•
the appellant.

S.R. Appeal allowed.