Dinesh Kumar vs The State Of Bihar
2025 Latest Caselaw 1635 Patna

Patna High Court

Dinesh Kumar vs The State Of Bihar on 6 February, 2025

Author: Chandra Shekhar Jha

Bench: Chandra Shekhar Jha

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.64946 of 2021
       Arising Out of PS. Case No.-148 Year-2018 Thana- KOTWALI District- Patna
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Dinesh Kumar S/O Janardan Choudhary R/O Village- Bijhaura, P.O.-
Kukurahan, P.S.- Itarhi, District- Buxar, Pin Code- 802123
                                                                   ... ... Petitioner
                                       Versus
The State of Bihar
                                                            ... ... Opposite Party
======================================================
Appearance :
For the Petitioner/s     :        Mr.Rudrank Shivam Singh, Advocate
For the Opposite Party/s :        Mr.Satyendra Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
                    ORAL JUDGMENT
 Date : 06-02-2025

              Heard learned counsel appearing on behalf of the

 petitioner and learned A.P.P. for the State.

              2. The present petition has been filed for quashing of

 the order dated 08.04.2021 passed by learned Sessions

 Judge, Patna in connection with Criminal Revision No. 28 of

 2021, whereby and whereunder learned Sessions Judge has

 been pleased to reject the petitioner's revision application for

 release of arms and also to quash the order dated

 07.11.2020

passed by learned Chief Judicial Magistrate,

Patna in Kotwali (Patna) P.S. Case No. 148 of 2018, G.R. No.

1623/2018, whereby learned Magistrate has been pleased to

reject the petitioner's application for release of fire-arm and Patna High Court CR. MISC. No.64946 of 2021 dt.06-02-2025

ammunition.

3. Learned counsel for the petitioner submits that

an F.I.R. being Kotwali P.S. Case No. 148 of 2018 came to be

instituted wherein it was alleged that on 11.03.2018 at about

14.40 Hours, while the informant was checking vehicles with

other police personnel, when one white color Fortuner was

coming from the side of the Planetarium and was going

towards Bailey Road, Patna through Income Tax side in full

speed. It is next alleged that on suspicion, the police

personnel tried to stop the vehicle, but the vehicle sped away,

accordingly the higher officials were informed and the police

started chasing the vehicle and ultimately it was stopped near

Bihar Museum and during checking of the vehicle, five

persons were found inside the vehicle carrying rifle, further in

front of two witnesses, the vehicle was searched and from

the possession of the petitioner a rifle bearing number

374AB1403848 with 10 live cartridges was recovered, It is

further alleged that on query regarding the seized weapon

and cartridges, co-accused Md. Khalid disclosed that they are

involved in purchase and sale of land with the help of hired Patna High Court CR. MISC. No.64946 of 2021 dt.06-02-2025

gunmen by creating fear and they used to indulge in sale and

purchase of land and they were going to Janipur, Chirora for

purchasing land for which the four accused with arms were

hired. It is next alleged that on demand, the accused persons,

including the petitioner, were not able to produce original

valid license. It is next alleged that Md. Khalid and Santosh

Kumar were criminals having criminal antecedents.

4. Learned counsel for the petitioner submitted that

from perusal of the allegation as alleged in the F.I.R., it would

manifest that the informant himself has stated that on

demand, the license with respect to the weapons was not

produced, which amply demonstrates that had the petitioner

produced the license at the time when it was asked, perhaps

the weapon would not have been seized. It is next submitted

that petitioner is person with clean antecedent and they had

filed an application before the learned Chief Judicial

Magistrate, Patna for getting the arms released under Section

451 of the Cr.P.C., but the same was rejected, accordingly,

the petitioner moved in revision and the learned District &

Sessions Judge, Patna remanded the matter back to the Patna High Court CR. MISC. No.64946 of 2021 dt.06-02-2025

learned Chief Judicial Magistrate to adjudicate the same

afresh, but, thereafter, also after seeking a report from the

police, the learned Chief Judicial Magistrate again rejected

the application against which the present criminal revision was

filed which was also rejected mechanically. Learned counsel

next submits that from perusal of the order passed by the

learned District & Sessions Judge, it would manifest that the

learned court did not appreciate the facts of the case in its

correct perspective. It is further submitted that it is not in

dispute that the petitioner is having valid license and is person

with clean antecedent i.e., against him no criminal case is

pending or instituted. It is next submitted that as far as the

allegations in the F.I.R. is alleged, the same is in the realm of

allegations i.e., the allegations are to be adjudicated by a

Court of competent jurisdiction in a duly constituted trial.

5. Learned counsel for the petitioner next submitted

that in trial the petitioner either may get convicted or get

acquitted and in the event, if the petitioner get acquitted then

the entire allegation as alleged in the F.I.R. would stand

falsified and if he is convicted, he will serve the sentence. It is Patna High Court CR. MISC. No.64946 of 2021 dt.06-02-2025

further submitted that the sole ground on which the learned

District & Sessions Judge, Patna proceeded to dismiss the

criminal revision application is that the police has sent letter

to the competent authority to cancel the license of the

petitioner, at this stage the learned counsel submits that till

date the license of the petitioner has not been cancelled, it is

further submitted that the issue which arises for

consideration, in the present case, is that if the petitioner is

person with clean antecedent and he had a valid license for

carrying arms, then whether merely because he was found in

company of some accused against whom there is allegation in

the F.I.R. and the police officer has sent letter for cancellation

of their license, would disentitle the petitioner from getting his

arms released.

6. The learned counsel for the petitioner next

submitted that a counter affidavit has been filed by the Senior

Superintendent of Police, Patna and from perusal of the

counter affidavit, it would manifest that the same does not

even remotely dispute that the petitioner do not have a valid

license nor the fact that he is the person with clean Patna High Court CR. MISC. No.64946 of 2021 dt.06-02-2025

antecedent. It is further submitted that merely for the reason

that an application has been sent before the competent

authority for cancelling the license which till date has not been

cancelled, can never be a ground for not releasing the weapon

if the petitioner is valid license holder and was carrying the

arms in accordance with the terms of the license.

7. The learned counsel for the petitioner next

submitted that till date the arms have not been confiscated

and the petitioner undertakes that the arm would be produced

in the trial as and when required and in the event if the same

is not produced, when required, the petitioner will face the

consequences.

8. The learned counsel next relies on a decision of

the Hon'ble Supreme Court in the matter of Sunderbhai

Ambalal Desai Vs. State of Gujarat reported in 2002 10

SCC 283 to contend that if the arms would remain in

Malkhana the chances are bright that the arm may get

destroyed along with the cartridges.

9. The learned counsel next relies on Paragraph-7 of

the Judgment in the case of Sunderbhai Ambalal Desai Patna High Court CR. MISC. No.64946 of 2021 dt.06-02-2025

Vs.State of Gujarat (Supra):-

"In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:

1. owner of the article would not suffer because of its remaining unused or by its misappropriation;

2. court or the police would not be required to keep the article in safe custody;

3. if the proper Panchanama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and

4. 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."

10. The learned counsel for the petitioner, thus,

summarizes his submission and submits that what is not

in dispute rather stands admitted is that the weapons which

the petitioner was alleged to have been carrying is licensed

weapon and even the cartridges which was seized, was in

terms of the license, the weapon and the cartridges till date

have not been confiscated nor the license of the weapon, till

date, has been cancelled, but still in a mechanical manner, the

revisional Court as well as the Court of the learned Chief

Judicial Magistrate, Patna rejected the application filed under

Section 451 of the Cr.P.C. for releasing the arms.

11. The learned A.P.P for the State is not in a Patna High Court CR. MISC. No.64946 of 2021 dt.06-02-2025

position to rebut the submission of the learned counsel for the

petitioner based on the averments made in the counter

affidavit filed on behalf of the Senior Superintendent of Police,

Patna.

12. Considering the submissions and facts

recorded hereinabove, the order dated 08.04.2021 passed in

Cr. Revision No. 28 of 2021 by the learned Sessions Judge,

Patna whereby the revision application has been dismissed

and the order dated 07.11.2020 passed in Kotwali (Patna)

P.S. Case No. 148 of 2018, G.R. No. 1623/2018 passed by

the learned Chief Judicial Magistrate, Patna has been affirmed

whereby the petition filed by the petitioner under Section 451

Cr.P.C. for release of his licensed weapon was rejected, is

hereby quashed.

13. The arms along with the cartridges shall be

released in favour of the petitioner on the following

conditions:-

(i) the petitioner shall furnish personal bond of Rs. 2,00,000/-(Rupees Two Lakhs) with one solvent surety in the like amount to the satisfaction of the learned trial court, thereafter the aforesaid weapon Patna High Court CR. MISC. No.64946 of 2021 dt.06-02-2025

along with the cartridges shall be handed over to the petitioner on producing the license of the weapon, the Court will also verify whether the cartridges seized was in terms of the license or not and if it is found that the cartridges recovered from the petitioner was not in consonance with the license, in that event, the cartridges shall not be released;

(ii) whenever required by the competent court, the weapon and the cartridges shall be produced on petitioner's expense at the place directed; or

(iii) any further condition imposed by the learned trial court.

14. Accordingly, the present quashing

application stands allowed.

(Chandra Shekhar Jha, J) Rajeev/-

AFR/NAFR                        NAFR
CAV DATE                          NA
Uploading Date                07.02.2025
Transmission Date             07.02.2025