Allowed

Farahim Khan v. State of U.P.

Allahabad HC16 Jan 2023A482/8753/2022

Case brief

AI extract

What is this about?

The court allowed an application under Section 482 CrPC to modify an impugned order directing destruction of a hospitalized bulletproof vest (D.B.B.L. Gun) case property. The court quashed the directive to destroy this specific property while directing a fresh decision on its release.

What did the court decide?

Impugned order directing destruction of case property quashed; directive modified to exclude the applicant's licensed gun; release application decided afresh within one month.

Farahim Khan Vs State of U.P. — Writ and Judicial Review | Allahabad HC (2023)

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Court No. - 66

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Case :- APPLICATION U/S 482 No. - 8753 of 2022

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Applicant :- Farahim Khan Opposite Party :- State of U.P. Counsel for Applicant :- Arvind Agrawal Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Arvind Agrawal, the learned counsel for applicant and the learned A.G.A. for State.

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At the very outset, the learned counsel for applicant submits that he be permitted to amend the prayer clause of this application by seeking a modification of the judgement and order dated 03.02.2016 passed by Additional Sessions Judge, Court No.9, District-Firozabad whereby Session Judge had directed that case property be destroyed after expiry of period of limitation of filling an appeal.

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3.Prayer made for is bonafide. Same is not opposed by learned A.G.A. Accordingly, it is allowed.

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Let necessary amendment in the prayer clause of present application be carried out by learned counsel for applicant during course of the day.

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Present application under Section 482 Cr.P.C. has been filed challenging the Order dated 10.02.2020 passed by Additional Civil Judge Ist, Firozabad whereby release application filed by applicant seeking release of D.B.B.L Gun No. A3980D/3-94 has been rejected on the ground that since vide judgement and order dated 03.02.2016, the Additional Sessions Judge, Firozabad has directed that the case property be destroyed after expiry of the period of limitation of filing an appeal therefore the disputed gun can not be released.

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6.Learned counsel for applicant submits that applicant is the real owner of aforementioned D.B.B.L. Gun. Aforementioned Gun was recovered by the police from one of the accused namely Ishrat. However, subsequently, all the accused have been acquitted in Sessions Trial No. 549 of 2012 State Vs. Ishrat and others. On the above premise, learned counsel for applicant submits that order impugned in present application whereby release application filed by applicant has been rejected is liable to be quashed by this Court.

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It is next contended by learned counsel for applicant that the disputed D.B.B.L. gun of applicant has not been released only on the ground that the Sessions Judge has observed in the judgement and order dated 03.02.2016

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Per Contra, the learned A.G.A. has opposed the application. He submits that the judgement and order passed by Sessions Judge cannot be challenged in proceedings under Section 482 Cr.P.C. Remedy of applicant is to challenge the judgement and order dated 03.02.2016 by way of an appeal. As no appeal has been filed alongwith an application for leave to appeal challenging above order therefore no illegality has been committed by court below in rejecting the release application of the applicant.

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9.In rejoinder, the learned counsel for applicant has disputed the submission made by learned A.G.A.. He submits that there is no challenge on the part of present applicant to the judgement and order dated 03.02.2016 whereby sessions court has acquitted the accused. Applicant is aggrieved by the judgement and order dated 03.02.2016 only to the extent whereby court below has directed that the case property be destroyed after expiry of the limitation for filing an appeal. Therefore, remedy of appeal is a futile exercise. Applicant is only seeking the

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release of D.B.B.L Gun on the ground that he is real owner of the licenced Gun. Therefore, present application under Section 482 Cr.P.C. is maintainable. It is further contended by learned counsel for applicant that Application under Section 482 Cr.P.C. is not procedure but power of this Court.

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Having heard the learned counsel for applicants, the learned A.G.A. for State and upon perusal of record this Court finds that there is no challenge to the judgement and order dated 03.02.2016 passed by Additional Sessions Judge, Firozabad on merit. The court further finds that in view of the observations made in aforesaid judgement and order dated 03.02.2016, that the case property be destroyed after expiry of period of limitation for filing an appeal that the licenced D.B.B.L. Gun of the applicant, which is the case property in aforementioned Sessions Trial has not been released.

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Considering the just and equitable submissions made by learned counsel for applicant, this application is liable to be allowed.

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It is accordingly allowed.

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The impugned judgement and order dated 03.02.2016, whereby it has been observed that case property be destroyed after expiry of period of limitation for filing an appeal is modified to the extent that said observation shall be applicable to all other case property except the D. B.B.L. Gun of applicant, Resultantly, order impugned in present applicant cannot be sustained. Same is liable to quashed.

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It is accordingly quashed.

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Court below is directed to decide the release application of the applicant afresh within a period of one month from the date

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of production of a certified copy of this order.

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Order Date :- 16.1.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Farahim Khan v. State of U.P.

Case brief

What is this about?

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Farahim Khan v. State of U.P.

Case brief

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