Rajesh Tiwari vs State Of U.P.
2011 Latest Caselaw 4871 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 50
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 17312 of 2011
 
Petitioner :- Rajesh Tiwari
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Satya Dheer Singh Jadaun,Smt. Sushila Jadaun
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble S.C. Agarwal,J.

Counter affidavit filed today is taken on record.

Heard learned counsel for the revisionist and learned AGA for the State.

This writ petition has been filed with a prayer to quash the order dated 13.4.2011 passed by learned Sessions Judge, Auraiya in Criminal Revision No. 20 of 2011, Rajesh Tiwari Vs. State of U.P. and order dated 8.9.2010 passed by C.J.M., Auraiya and further prayed for direction to learned C.J.M. Auraiya to allow the application dated 31.7.2010 of the petitioner for release of the revolver alongwith the cartridges.

In crime no. 161 of 2010, under Sections 147, 148, 149, 307, 336 IPC, P.S. Dibiyapur, District- Kannauj, the licenced pistol of accused-petitioner Rajesh Tiwari was seized by the police and application for release the said pistol was rejected by the Magistrate. The revision preferred by the petitioner has been dismissed. The allegations against the petitioner is that he alongwith the co-accused started damaging the chhapper of the complainant. When the complainant, his wife, daughter, son and others challenged them, the accused persons fired from the gun and pistol.

Learned counsel for the petitioners submitted that it is no injury case. Though the petitioner is an accused in the aforesaid case, he is the licencee of the said pistol, which was never used in the incident. No proceeding for cancellation of licence of the pistol is pending before the District Magistrate. In these circumstances, learned Magistrate should have given the pistol in supurdgi of the petitioner.

Learned AGA submits that being an accused, the pistol should not be released in the supurdgi of the petitioner.

Admittedly, it is no injury case. By keeping the pistol for a long time at the police station is likely to damage it beyond repair. The petitioner is the valid licence holder of the pistol. He should have been directed to produce the pistol in the trial as and when directed.

In these circumstances, the impugned orders cannot be sustained and are liable to be quashed.

The writ petition is allowed. Impugned orders are quashed.

Learned Magistrate is directed to release the pistol and the cartridges in the supurdgi of its licence holder (petitioner) on furnishing adequate security to its satisfaction subject to the following conditions :-

(i) The petitioner shall not transfer the pistol and the cartridges by way of sale or otherwise to any person during pendency of the criminal case.

(ii) The petitioner shall produce the pistol and the cartridges in Court for the purposes of evidence as and when directed by the court at his own expenses.

Order Date :- 27.9.2011

KU