Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Babu Lal Ram holding brief of Sri Chandrajeet, learned counsel for the revisionist and Ms. Sushma Soni, learned Additional Government Advocate for the State-opposite party.

2. The present revision has been preferred against the order dated 30.01.2021 passed by the Chief Metropolitan Magistrate, Kanpur Nagar in Criminal Misc. Application No.516 of 2021 (State vs. Ashok Gupta and others) arising out of Case Crime No.346 of 2020, under Section 3/4 of Public Gambling Act, 1867, Police Station Fazalganj, District Kanpur Nagar, pending before the Chief Metropolitan Magistrate, Kanpur Nagar whereby he has dismissed the application filed by the revisionist under Section 451 of the Code of Criminal Procedure, 1973(the Code) with regard to release of the amount in favour of the revisionist during the pendency of the case.

3. Records of the case indicate that the application dated 20.01.2021 was filed by the applicant-revisionist under Section 451 of the Code for release of the amount which had been seized by the police. The Chief Metropolitan Magistrate, Kanpur Nagar while considering the application has looked into the material on record and has held that the recovery memo prima facie indicates that the amount recovered from the possession of the applicant had been used for the purpose of gambling and since the investigation was pending it was not appropriate to issue any direction for release of the amount.

4. Learned counsel for the revisionist has sought to assail the aforesaid order by referring to the facts of the case and the defence of the revisionist.

5. Learned AGA submits that the contention which is sought to be raised by the revisionist would relate to disputed questions of fact and appreciation of evidence, which could not be seen at this stage. It is further pointed out that an order for custody and disposal of property under Section 451 of the Code can be sought only during the pendency of the trial or inquiry and not at the stage of investigation.

6. The scheme under Sections 451 to 459, which fall under Chapter XXXIV of the Code, contain elaborate provisions regarding disposal of property; (a) in respect of which an offence appears to have been committed, or (b) which appears to have been used for the commission of an offence, or (c) which has been produced before the Court, or (d) which is in the custody of the Court.

7. Detailed provisions have been made in regard to the property seized by the police during the course of investigation including provisions for passing of interim orders for the custody and disposal of such property pending inquiry or trial and of final orders at the conclusion of inquiry or trial.

8. Section 451 empowers the Court to pass appropriate orders for the custody of property produced during any inquiry or trial and in the event of speedy decay the Court may direct the sale or otherwise disposal of property. The application under Section 451 can be made during the pendency of the inquiry or trial on production of property in the Court. Section 452 confers power on the Court to direct disposal of the property at the conclusion of trial or inquiry. Section 451 can therefore, be invoked during pendency of inquiry or trial whereas Section 452 would be applicable after the termination of the inquiry or trial and under both the provisions the powers would be exercisable when the property is in the custody of the Court or produced before the Court. The provisions under Sections 451 or 452 would not be applicable where the case is still at the stage of investigation.

9. Section 457 provides that whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of the Code, and such property is not produced before a Criminal Court during any inquiry or trial, the Magistrate is empowered to give suitable directions regarding disposal or delivery of the property.

10. Section 451 of the Code, which relates in particular to the controversy at hand, reads as follows:

“451. Order for custody and disposal of property pending trial in certain cases. 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, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation.- For the purposes of this section," property" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.”

11. The words “inquiry” and “investigation” have been defined under Section 2(g) and 2(h) of the Code, respectively, and the same are as follows:

“(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf;”

12. The word “trial” though not defined under the Code is commonly understood to refer to a judicial proceeding which commences after framing of charge and concludes with either conviction or acquittal.

13. In terms of the provisions contained under Section 451 of the Code where any property is produced before any criminal court during an inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending conclusion of the trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

14. As per clause (a) of the Explanation to Section 451, any kind of property which is either produced before the court or is in custody of the court would be within the purview of the section. Section 451 would have no application unless the property is produced before the court during the inquiry or trial.

15. The section empowers the court to make orders for interim custody for disposal of the property produced before it during an inquiry or trial. This order may be passed in respect of both (i) property produced before the court during the inquiry or trial, and (ii) property regarding which the offence appears to have been committed or which appears to have been used for commission of any offence.

16. In the facts of the present case, the case was pending at the stage of the investigation and the stage of trial had not yet reached.

17. The case is registered under the provisions of Public Gambling Act, 1867, and in terms of the scheme of the, the Magistrate or the Officer authorised is empowered to search, seize and take possession all instruments of gaming, and of moneys and security of money and articles of value, reasonably suspected to have been used or intended to have been used for the purpose of gaming which are found therein.

18. The power of the court under Section 451 of the Code for passing of an order for custody and disposal of property can be invoked, only during the course of an inquiry or at the stage of trial. The proceedings relating to investigation are not within the realm of either inquiry or trial and therefore the powers of the court under Section 451 cannot be invoked at the stage of investigation.

19. The court below has thus rightly held that since investigation was pending no order for custody or disposal of property could be passed in exercise of powers under Section 451 of the Code.

20. Counsel for the revisionist has not been able to dispute the aforesaid factual and legal position. He, however, submits that the revisionist may have liberty of invoking the jurisdiction of the court for release of property at the appropriate stage during the course of the trial.

21. No material error or illegality having been pointed out in the order passed by the court below, the revision stands dismissed.

22. However, this would not preclude the revisionist from invoking the jurisdiction of the court for an order for custody or disposal of the property at the appropriate stage.