Allahabad High Court
Virendra Jaiswal vs State Of U.P. on 4 May, 2012
Bench: Surendra Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
RESERVED
Case :- APPLICATION U/S 482 No. - 41851 of 2011
Petitioner :- Virendra Jaiswal
Respondent :- State Of U.P.
Petitioner Counsel :- A.P.Tiwari,S.S. Tripathi
Respondent Counsel :- Govt.Advocate
Hon'ble Surendra Kumar,J.
1.Heard learned counsel for the applicant and learned A.G.A. for the State.
2.The applicant Virendra Jaiswal has filed this application under Section 482 Cr.P.C. challenging the order dated 14.7.2011 passed by the learned Judicial Magistrate Ist, Court No. 24, Gorakhpur in Crime No. 140 of 2011-State Vs. Ravi Jaiswal, under Section 307 I.P.C., Police Station Khajani, District Gorakhpur and the order dated 15.11.2011 passed by the learned Sessions Judge, Gorakhpur in Criminal Revision No. 272 of 2011-Virendra Jaiswal Vs. State of U.P., whereby release of the revolver of the applicant has been refused.
3.It appears that the said revolver is involved in Case Crime No. 140 of 2011-State Vs. Ravi Jaiswal, under Section 307 I.P.C., Police Station Khajani, District Gorakhpur. The allegation is that the instant revolver was used in the aforesaid offence and, therefore, it was refused to be released.
4.Learned counsel for the applicant has submitted that the applicant is owner of 32 bore Revolver No. 21569 F.G. being Licence No. 5487 and the said revolver was never used in any criminal activities and no complaint was ever made against him. The applicant was involved in the said case and he was granted bail by the court below in Case Crime No. 140 of 2011-State Vs. Ravi Jaiswal, under Section 307 I.P.C., Police Station Khajani, District Gorakhpur but the said revolver has been refused to be released.
5.The next submission of the learned counsel for the applicant is that the applicant had produced the relevant documents before the learned Sessions Judge to substantiate his ownership. There is no dispute regarding ownership but on account of pendency of criminal case, he has been refused release.
6.I have gone through the record as well as the impugned orders. The Hon'ble Apex Court, in the case of Sunderbhai Ambalal Desai Vs. State of Gujrat, 2003 (46) A.C.C. 223: AIR 2003 SC 638 has clearly held that the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes:- (i) Owner of the article would not suffer because of its remaining unused,(ii) Court or the police would not be required to keep the article in safe custody, (iii) If the proper panchnama before handing over article is prepared, that can be used in evidence instead of its production before the court during the trial, if necessary, (iv) This jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. The Apex Court has clearly held that appropriate orders should be passed immediately because keeping it at police station for a long period would only result in decay of the article. The court should ensure that the article will be produced if and when required by taking bond, guarantee or security.
In the aforesaid judgment it has also been held that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month.
7.Similar view has been followed in a number of decisions of this Court as well. Mohd. Shamim Khan Vs. State of U.P., 2004, A.C.C. (48), 605. In the case of Tulsi Rajak Vs. State of Jharkhand, 2004, Criminal Law Journal, 2450, it was held that truck lying in the police station for more than one year resulted in heavy loss of the petitioner and in the circumstances, the High Court permitted to release the vehicle. In Gurnam Singh and another Vs. State of Uttaranchal, 2003 (47) A.C.C., 1086, it was held that what so ever the situation be, there is no use to keep the seized vehicle at the police station or court campus for a long period, the Magistrate should pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicle, if required at any point of time.
8.Taking into consideration the entire facts and circumstances, I come to the conclusion that the orders of the courts below can not be left to stand. No good reason has been assigned for refusing the prayer for release of the said revolver. Accordingly, the order dated 14.7.2011 passed by the learned Judicial Magistrate Ist, Court No. 24, Gorakhpur and the order dated 15.11.2011 passed by the learned Sessions Judge, Gorakhpur are quashed. The learned Magistrate concerned is directed to release the said revolver in favour of the applicant within a period of three weeks from the date, a certified copy of this order is produced before him after taking adequate guarantee/ security of the said revolver from the applicant and also an undertaking that the revolver will not be disposed of during pendency of the criminal proceedings.
9.With the aforesaid observations, this application is finally disposed of.
Order Date :-4.5.2012
Rmk.
