Allowed

Gyanendra v. State of U.P. and Another

Allahabad HC11 Apr 2023CRLR/1547/2020

Case brief

AI extract

What is this about?

The High Court allowed a revision against the rejection of an application for releasing a licensed rifle during a criminal trial. Finding the primary eyewitness hostile and lacking ballistic evidence linking the weapon to the alleged crime, the Court held the rifle should be released to the valid licensee with conditions, including surrender and sureties, relying on Supreme Court precedents on dec

What did the court decide?

Impugned order dated 20.07.2020 quashed. Release application to be decided afresh. Rifle released if valid licensee status and purchase legitimacy verified, subject to personal bond and two sureties.

Gyanendra Vs State of U.P. and Another — Execution and Attachment | Allahabad HC (2023)

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AFR

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Court No. - 53

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Case :- CRIMINAL REVISION No. - 1547 of 2020 Revisionist :- Gyanendra Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sarvesh Kumar Dubey,Virendra Singh Counsel for Opposite Party :- G.A.

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Hon'ble Umesh Chandra Sharma,J.

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Heard Sri Sarvesh Kumar Dubey, learned counsel for the revisionist, Sri Anand Sagar, learned AGA for the State and perused the record.

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This revision has been preferred against the order dated 20.07.2020 passed by Additional Chief Judicial Magistrate, Court No.1, Bulandshahr in Case Crime No.264 of 2020 (State Vs. Gyanendra), under Sections 307 and 504 IPC, Police Station Jahagirabad, District Bulandshahr and to release the revisionist’s licensed rifle bearing Licence No.K/146/ARMS/DM/KUL/202/2012 Rifle No.AB1300681- .315 Bore in his favour.

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In brief, facts of the case are that Lakhma, opposite party no.2 lodged an FIR on 15.06.2020 with the allegations that accused Gyanendra has enmity with him due to altercation occurred two years ago. On 15.06.2020 at about 12:00 noon, the informant, Lakhma, Surendra, Lal Singh, Harveer, Manoj were sitting and watching the government work going on near the pond when the accused reached with rifle and started abusing him and when the informant prevented him, he fired upon him with his licensed rifle with the intention to kill him in which he escaped. On the above facts the informant

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lodged the FIR for initiation of legal proceeding against him.

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After investigation charge sheet had been submitted against the revisionist under Sections 307 and 504 IPC and his licensed rifle had been taken into possession by the police. The revisionist moved an application in the Court of ACJM on which a report had been called for and thereafter the concerned court rejected the release application on 20.07.2020 which is impugned herein.

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The revisionist has challenged the impugned order on the grounds that it is illegal and unfair and has been passed ignoring the facts and law involved in the case even without applying judicial mind and without considering background of the case in hasty manner which is bad in the eyes of law. It has been held by the Apex Court that articles prone to natural decay shall be released in favour of the owner subject to certain conditions but the trial court rejected the release application in illegal and arbitrary manner. The FIR version is totally misconceived and has been lodged merely to solve the old pending enmity. The informant did not sustain any injury and is alleged to have escaped, hence the revision be allowed and the impugned order be set aside.

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Learned counsel for the revisionist argued that virtually an FIR had been lodged by the wife of the revisionist namely Kavita Devi regarding the incident dated 25.10.2018 occurred at about 09:00 a.m. about

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which an FIR under Sections 394, 379, 511, 452 and 506 IPC had been lodged. The informant has lodged the present FIR to mount pressure upon the revisionist to compromise the previously lodged criminal case and there is no truthfulness in the FIR.

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The revisionist has also filed statement of PW-1, Lakhma i.e. informant through supplementary affidavit which shows that the revisionist had not fired upon the informant. He had not seen the revisionist firing upon him virtually. At the alleged placed of occurrence there were several monkeys fighting with each other and a fire occurred for dispersing them. Some of the persons informed that the revisionist had fired upon him. He had not received any firearm injury and had also not seen the revisionist firing upon him. On the hearsay of villagers he had lodged the FIR. He himself had not written the complaint. Informant - opposite party no.2 has been declared hostile and he was cross-examined by the Government Advocate but even in such cross-examination he did not favour the prosecution case. In crossexamination by the defence he deposed that he is only 8th pass. The report had neither been written by him nor it had been read over to him. He had not received any injury and he was not medically examined. The revisionist had not abused him. The witness was also cross-examined by the court in which he deposed that at the time of alleged occurrence, the accused had no weapon with him. He could not say as to which person had written the complaint. He had only signed the complaint. On the day

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of occurrence he was not interrogated by the police. Day after the incident he was summoned for interrogation by the police and he had stated that an explosion had been made for dispersing the monkeys. He had lodged the complaint against the accused on the saying of some villagers.

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From the above deposition of the informant it is very much clear that the informant opposite party no.2 has not supported the prosecution case in his statement.

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From perusal of the record it transpires that the impugned licensed rifle has been taken into custody by the police and has been deposited in police malkhana (treasury). Before passing the impugned order, the concerned Magistrate had summoned the report from District Magistrate/Additional District Magistrate about which a report had been submitted on 17.07.2020 to the effect that the arms licence does not belong to District Bulandshahar, hence no proceeding for its cancellation is possible from the office of District Magistrate, Bulandshahar. It has also been reiterated that till 16.07.2020, no police report regarding confiscation of the impugned rifle had been received.

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From perusal of record it transpires that the revisionist is the valid licensee of the impugned rifle and it is valid upto 24.05.2025.

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A counter affidavit has been filed by the SubInspector of Police Station Jahangirabad in which it has

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been stated that about the alleged offence, a criminal case is pending in the court, the impugned rifle has been used in commission of crime and a report has been submitted for cancellation of licence before the District Magistrate, Bulandshahar.

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However, no copy of such report has been annexed with the counter affidavit filed on behalf of the State and it is very much clear from the version of said SubInspector that till 16.07.2020 no report for confiscation of the impugned rifle had been sent by the concerned police station to the office of District Magistrate. Incharge (Arms/ADM (Administration), Bulandshahar has also reported to the concerned Magistrate on 17.07.2020 that since the licence of the impugned rifle does not belong to District Bulandshahar, therefore, it is not possible for the authority at Bulandshahar to verify the arms licence. From perusal of photocopy of the arms licence it transpires that the arms licence for the impugned rifle had been issued by the ADM, Rajori, Jammu and Kashmir. Hence, if the police and administration of District Bulandshahar were of the view that on the basis of FIR, the arms licence of the accused must be concealed, it was their duty to approach the concerned authority to convey the whole facts for getting the licence cancelled and the rifle confiscated. There is no iota of evidence that any such step has been taken by the police or the administration of District Bulandshahar. Hence, this Court is of the view that in absence of any proceeding regarding confiscation and cancellation of the impugned rifle, the

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rifle would be treated to be case property about which a release order may be passed under Chapter XXXIV of the Code of Criminal Procedure. Section 451 CrPC deals with the custody and disposal of the case property during the pendency of the trial. For ready referenece Section 451 CrPC reads as under:-

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" 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.

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

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

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(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."

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In Sunder Bhai Amba Lal Desai Vs. Gujrat State, (2002) 10 SCC 283 the Apex Court held that; (i) owner of the article would not suffer because of its remaining unused or by its misappropriation, (ii) court or the police would not be required to keep the article in safe custody, (iii) if the proper panchanama before handing over possession of 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, (iv) this

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jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

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It is very much clear from the perusal of the guidelines propounded by the Apex Court that the impugned rifle is also an article of which value would be diminished and it would be decayed if the same is not released in favour of the valid licence holder. There is no other claimant of the impugned rifle. Till now no report has been submitted that the licence of the accused revisionist is not in accordance with law and he is not the rightful owner/licensee of the impugned rifle.

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The Apex Court has held that decayable articles should be released in favour of the owner or possession holder keeping its photograph preserved for production as evidence in the court. In this case the prosecution may take the snaps of the impugned rifle and may preserve it as document for production in the court at the appropriate stage. The Magistrate was empowered to impose some conditions while releasing the rifle that the impugned rifle would be kept safely by the licensee and would not be transferred to any other person till the final disposal of the case or the appeal and it would be produced in the court as material evidence. Even the photographs taken so, may also be produced as material evidence before the concerned court.

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It is also noteworthy that there is no ballistic expert report to establish that any FIR had been made from the

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impugned rifle at the time of the alleged commission of crime. The informant who is main victim of the case has not supported the prosecution version. Hence, considering the above all circumstances and law relating to the release of the property during the trial, this Court is of the view that the rejection order passed by the Magistrate is not sustainable and is liable to be quashed and the release application is liable to be allowed.

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17. This criminal revision is, accordingly, allowed.

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The impugned order dated 20.07.2020 passed by Additional Chief Judicial Magistrate, Court No.1, Bulandshahr regarding rejection of release of the rifle is quashed. The release application shall be decided afresh by the concerned court in the light of the above observation. If the learned trial court proceeds to release the impugned rifle, before releasing the impugned rifle, the concerned Magistrate/SHO shall verify as to whether the revisionist is valid licensee of the impugned rifle or not. It shall also be verified that the impugned rifle had been purchased by the revisionist in accordance with law and that the revisionist has an upto date rifle licence on the date of release of the impugned rifle or not. If the revisionist succeeds in establishing the fact that he is the valid licensee, the impugned rifle had been purchased by him in accordance with law and he has valid upto date licence at the time of release of the impugned rifle, the impugned rifle mentioned above would be released in his favour if he further executes a personal bond and two

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sureties of the like amount to the satisfaction of the court concerned.

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Order Date :- 11.4.2023 Shahroz

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(Umesh Chandra Sharma,J.)

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Digitally signed by :- SHAHROJ ALAM High Court of Judicature at Allahabad

Gyanendra v. State of U.P. and Another

Case brief

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Gyanendra v. State of U.P. and Another

Case brief

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