Section 451 CrPC vs Section 497 BNSS — Custody and Disposal of Property (CrPC 451-452)

In India, Sections 497 and 498 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 451 and 452 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. Custody orders now reach the investigation stage and the Magistrate, and Section 497 adds a fourteen-day property statement, photographs as evidence, and a thirty-day disposal order.

At a glance

These are procedural provisions; the First Schedule classification does not apply to them.

What changed

• Expanded — who may act under Section 497(1). Section 451 CrPC applied to property "produced before any Criminal Court". Section 497(1) applies to property "produced before any Criminal Court or the Magistrate empowered to take cognizance or commit the case for trial", and "the Court or the Magistrate" may make the order.
• Expanded — when Section 497(1) applies. "during any inquiry or trial" becomes "during any investigation, inquiry or trial", and custody runs "pending the conclusion of the investigation, inquiry or trial".
• Identical — the power and the Explanation. The court may still order proper custody, and, "if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do", may, "after recording such evidence as it thinks necessary", order it to be sold or otherwise disposed of. The Explanation defining "property" is repeated word for word.
• New — Section 497(2) to (5). A statement of the property within fourteen days, a photograph and, if necessary, a videograph, their use as evidence, and a disposal order within thirty days. None of these appears in Section 451.
• Expanded — Section 498(1) and (2). "When an inquiry or trial in any Criminal Court is concluded, the Court may" becomes "When an investigation, inquiry or trial in any criminal case is concluded, the Court or the Magistrate may". In sub-section (2) the bond is to the satisfaction of "the Court or the Magistrate".
• Minor edit — Section 498(3). "sections 457, 458 and 459" becomes "sections 503, 504 and 505".
• Identical — Section 498(4) and (5). The two-month hold and the rule that "property" includes property into which the original has been converted or exchanged are unchanged.
• Neighbours. Section 499 BNSS (payment to an innocent purchaser, formerly Section 453 CrPC) now requires the payment "within six months from the date of such order", and Section 500 (formerly Section 454) extends the appeal to orders of a Magistrate. Section 503 BNSS (formerly Section 457 CrPC) covers seized property reported to a Magistrate but not produced before a court.

Statutory text (relevant extract)

Section 451 CrPC (extract): "When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial".

Section 497(1) BNSS (extract): "When any property is produced before any Criminal Court or the Magistrate empowered to take cognizance or commit the case for trial during any investigation, inquiry or trial, the Court or the Magistrate may make such order as it thinks fit for the proper custody of such property pending the conclusion of the investigation, inquiry or trial".

Section 497(2) BNSS (extract): "The Court or the Magistrate shall, within a period of fourteen days from the production of the property referred to in sub-section (1) before it, prepare a statement of such property containing its description in such form and manner as the State Government may, by rules, provide."

Section 497(5) BNSS (extract): "The Court or the Magistrate shall, within a period of thirty days after the statement has been prepared under sub-section (2) and the photograph or the videography has been taken under sub-section (3), order the disposal, destruction, confiscation or delivery of the property in the manner specified hereinafter."

How it works — step by step

1. Production. Section 497 is triggered when property is "produced" before a Criminal Court or the Magistrate empowered to take cognizance or commit the case. Under the Explanation, "property" includes (a) property of any kind or a document produced before the court or in its custody, and (b) property regarding which an offence appears to have been committed or which appears to have been used for the commission of an offence. Seized property that is reported to a Magistrate but not produced is dealt with under Section 503.

2. Interim custody. Under Section 497(1) the Court or the Magistrate may make "such order as it thinks fit for the proper custody" of the property pending the conclusion of the investigation, inquiry or trial.

3. Sale or disposal where needed. If the property is subject to speedy and natural decay, or it is otherwise expedient, the Court or the Magistrate may, after recording such evidence as it thinks necessary, order it sold or otherwise disposed of (Section 497(1)).

4. Statement within fourteen days. Section 497(2) requires a statement describing the property, prepared within fourteen days from its production, in the form and manner State rules provide.

5. Photograph and videograph. Section 497(3) requires the property to be photographed and, "if necessary", videographed on mobile phone or any electronic media. The photograph is mandatory; the videograph depends on necessity.

6. Evidence. Section 497(4): the statement and the photograph or videography "shall be used as evidence in any inquiry, trial or other proceeding under the Sanhita".

7. Order within thirty days. Section 497(5) requires the Court or the Magistrate, within thirty days after the statement and the photograph or videography, to "order the disposal, destruction, confiscation or delivery of the property in the manner specified hereinafter". The sub-section fixes a time for the order and names its kinds — disposal, destruction, confiscation or delivery; the text read does not say how this order relates to custody "pending the conclusion of the investigation, inquiry or trial" under Section 497(1).

8. Final disposal. When the investigation, inquiry or trial is concluded, Section 498(1) lets the Court or the Magistrate order disposal "by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise". Delivery may be unconditional or on a bond, with or without sureties, to restore the property if the order is modified or set aside on appeal or revision (Section 498(2)). A Court of Session may instead send the property to the Chief Judicial Magistrate to be dealt with under Sections 503 to 505 (Section 498(3)).

9. The two-month hold. Except for livestock, property subject to speedy and natural decay, or property delivered on a bond, a Section 498(1) order "shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of" (Section 498(4)). The appeal lies under Section 500 to the court to which appeals ordinarily lie from convictions by the court that made the order.

What this means in practice

• For an owner seeking release (for example of a vehicle): apply to the Court or the Magistrate before whom the property has been produced. On a reading of Section 497(1), an application during investigation is now expressly within the section. From the date of production, the statement is due within fourteen days (Section 497(2)) and an order within thirty days after the statement and photograph (Section 497(5)).
• For the investigating officer: Section 497 turns on production before the Court or the Magistrate. Once the property is produced, the photograph and statement prepared under Section 497(2)-(3) are themselves evidence (Section 497(4)); on a reading of the text, this reduces the need to keep the object itself for trial.
• For the accused: the statement and photographs will be used as evidence under Section 497(4). On a reading, any dispute about the description or identity of the property should be raised when the statement is prepared, not first at trial.
• For the successful claimant at the end of the case: a Section 498 order is not carried out for two months unless a bond is executed under Section 498(2) or the property is livestock or perishable.

Judgments that still matter

Section 497(1) repeats the operative power of Section 451 ("proper custody", sale where "subject to speedy and natural decay" or "otherwise expedient"), and Section 498 repeats Section 452 apart from the edits listed above. On a reading of the text, judgments construing those words remain relevant. Neither judgment below construes the BNSS provisions.

Sunderbhai Ambalal Desai v. State of Gujarat, [2002] Supp. 3 S.C.R. 39 (2002 INSC 418), order of 1 October 2002. In special leave petitions by police inspectors accused of replacing and misappropriating seized articles, a two-judge bench (M.B. Shah and D.M. Dharmadhikari JJ.) said that "the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously" and gave directions. For valuables belonging to a complainant, articles may be handed over after a detailed panchnama, photographs and a bond to produce them at trial, and security. For vehicles, "it is of no use to keep such seized vehicles at the police stations for a long period", and the Magistrate is to pass orders "immediately by taking appropriate bond and guarantee as well as security"; an unclaimed vehicle may be auctioned, with an order to be passed within six months of production, and photographs and a panchnama are to be taken before handing over. The Court expressed the hope that articles would not be kept at the police station "for not more than fifteen days to one month". The reported order carries no paragraph numbers. In a further order of 18 November 2002 in the same matter, the Court added that where the accused disputes his involvement and no article was found from him, that endorsement be taken on the photograph, and that for a vehicle "the Seizure Report may be sufficient" without producing the vehicle, and disposed of the petitions. Why it matters now: Section 497(2)-(4) puts a statement and photograph requirement into the section itself.

General Insurance Council and Ors. v. State of Andhra Pradesh and Ors., [2010] 5 S.C.R. 97 (2010 INSC 225), decided 19 April 2010. On a writ petition alleging non-compliance with Sunderbhai, a two-judge bench (judgment by Deepak Verma J.) issued further directions "considering the mandate of Section 451 read with Section 457" (para 14): an insurer may apply for release of a recovered vehicle, which "Ordinarily" is to be released "within a period of 30 days from the date of the application"; authenticated photographs "may be used as secondary evidence during trial", so physical production may be dispensed with; and the insurer is to give an undertaking to remit sale proceeds if it is not found to be the owner. The Court noted that a vehicle kept stationary in a police station for more than fifteen days loses road-worthiness, and directed State Governments, Union Territories and Directors General of Police to ensure "macro implementation of the statutory provisions" (para 15). The writ petition was disposed of (para 16). Why it matters now: these directions were framed on Sections 451 and 457 CrPC; Sections 497 and 503 BNSS repeat their operative words, and Section 497(4) now makes the statement and photograph evidence by statute.

Which law applies to your case

Section 531(2)(a) BNSS provides that any "appeal, application, trial, inquiry or investigation" pending immediately before 1 July 2024 is disposed of, continued, held or made under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a custody application pending on 30 June 2024 is decided under Section 451 CrPC, and property in an investigation, inquiry or trial pending on that date is governed by Sections 451-452 CrPC. See offence before 1 July 2024: which law applies.

Frequently asked questions

What is the BNSS equivalent of Section 451 CrPC? Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 451 of the Code of Criminal Procedure, 1973 from 1 July 2024, and Section 498 BNSS replaced Section 452 CrPC. Section 497(1) keeps the power to order proper custody of property produced in court, or its sale or other disposal if it is subject to speedy and natural decay or it is otherwise expedient. Sub-sections (2) to (5) are new.

Can property seized during investigation be released under Section 497 BNSS? Section 497(1) BNSS applies when property is produced before a Criminal Court or the Magistrate empowered to take cognizance or commit the case for trial during any investigation, inquiry or trial. Section 451 CrPC referred only to property produced before a Criminal Court during an inquiry or trial. The investigation stage is therefore now in the text.

What must the court do within fourteen days of seized property being produced? Under Section 497(2) BNSS the Court or the Magistrate shall, within a period of fourteen days from the production of the property, prepare a statement of the property containing its description in such form and manner as the State Government may, by rules, provide. Under Section 497(3) it shall also cause the property to be photographed and, if necessary, videographed on mobile phone or any electronic media.

Is there a deadline for an order releasing or disposing of seized property? Yes. Section 497(5) BNSS requires the Court or the Magistrate, within a period of thirty days after the statement has been prepared and the photograph or videography taken, to order the disposal, destruction, confiscation or delivery of the property in the manner specified hereinafter in the Sanhita. Section 451 CrPC fixed no time limit.

Can photographs replace production of the property at trial? Section 497(4) BNSS provides that the statement prepared under sub-section (2) and the photograph or videography taken under sub-section (3) shall be used as evidence in any inquiry, trial or other proceeding under the Sanhita. Before the BNSS, the Supreme Court had directed in Sunderbhai Ambalal Desai v. State of Gujarat (2002 INSC 418) that photographs and a panchnama be prepared before valuables or vehicles were handed over.

What happens to case property when the trial ends? Under Section 498(1) BNSS, when an investigation, inquiry or trial is concluded, the Court or the Magistrate may order the property's disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession, or otherwise. Delivery may be unconditional or on a bond to restore the property if the order is modified or set aside on appeal or revision (Section 498(2)).

When can an order for disposal of property at the end of the case be carried out? Section 498(4) BNSS provides that, except where the property is livestock or subject to speedy and natural decay, or where a bond has been executed under Section 498(2), the order shall not be carried out for two months, or, when an appeal is presented, until the appeal has been disposed of. Section 452(4) CrPC was the same. Section 500 BNSS provides the appeal against a Section 498 order.

Which law applies to a property application pending on 1 July 2024? Section 531(2)(a) BNSS provides that an application, trial, inquiry or investigation pending immediately before the BNSS came into force is disposed of, continued, held or made under the CrPC as if the Sanhita had not come into force. On a reading of that text, an application for custody pending on 30 June 2024 is decided under Section 451 CrPC, without the fourteen-day and thirty-day steps.

Related

• Getting a seized vehicle or property back (BNSS 497-505)
• Police search of your home: videography under the BNSS
• Forensic evidence and videography under the new laws
• Offence before 1 July 2024: which law applies
• CrPC to BNSS master table
• Sections 453–459 CrPC vs Sections 499–505 BNSS — Innocent Purchaser, Appeals, Destruction, Restoration of Possession and Unclaimed Seized Property

Sources

• Acts and sections read: BNSS 2023 ss.497-500, 503, 531 (Gazette CG-DL-E-25122023-250884); CrPC 1973 ss.451-454, 457 (original India Code text).
• Judgments read (Veritect judgment corpus, full text): Sunderbhai Ambalal Desai v. State of Gujarat (S_2002_3_39_45_EN.md, order of 1 October 2002; S_2002_4_217_218_EN.md, order of 18 November 2002); General Insurance Council v. State of Andhra Pradesh (2010_5_97_107_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.