Allahabad High Court
Sushil Kumar Dwivedi vs State Of U.P. on 27 January, 2020
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- CRIMINAL REVISION No. - 4683 of 2019 Revisionist :- Sushil Kumar Dwivedi Opposite Party :- State of U.P. Counsel for Revisionist :- Indra Kumar Chaturvedi(Senior Adv.),Indra Kumar Chaturvedi(Senior Adv.),Ram Milan Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Dinesh Pathak,J.
Heard Sri I.K. Chaturvedi, learned Senior Counsel assisted by Sri Amar Nath Tripathi, holding brief of Sri Ram Milan Dwivedi, learned counsel for the revisionist and learned A.G.A for the State.
Rejoinder affidavit filed today by the learned counsel for the revisionist, is taken on record.
The instant criminal revision is preferred challenging the order dated 18.11.2019 passed by learned Additional Sessions Judge/Special Judge, (D.A.A.), Banda in Criminal Misc. Case No. 128 of 2019 (State Vs. Pankaj Gautam), rejecting the release application dated 27.08.2019 under Sections 451 and 457 Cr.P.C filed by revisionist for releasing his firearm Rifle No. 10A-B 05878-315 N.P. Bore and three life cartridges and Pistol No. R.P. 213879-32 Bore and four life cartridges, in Sessions Trial No. 70 of 2019, under sections 286/386/392/504/411 I.P.C, Police Station Atarra, District Banda.
The factual matrix of the case shows that on 06.06.2019 Sheelman (informant) son of Ayodhya Prasad, driver of truck no. U.P.-44-AT 3202, was driving truck loaded with sand from Lahotera Ghat P.S. Naraini to Sultanpur and, near the Atarra Galla Mandi, the tyre of truck was busted/flat tyred. While cleaner of truck, Ravi, was replacing the busted tyre, at about 10:30 p.m. one white Maruti Car bearing registration no. U.P.-78-B 1059 reached there and two persons (accused) stepped out from the car, one of them had a pistol in his hand and the other person, wearing white kurta, had a rifle. Both used abusive language against mother and sister of the informant on the pretext that he had over loaded the truck with sand. At the relevant point of time, another truck bearing registration no. U.P.-44-AT-3201 driven by Mahesh Kashyap, who was accompanied with the informant, also reached there. Accused persons had demanded money from both drivers. While they asked for receipt of money, accused persons fired from the rifle and snatched Rs. 1,500/- each from both the drivers.
With respect to the aforesaid incident, an F.I.R was lodged by driver Sheelman on 07.06.2019 at about 3:41 a.m. registered as case crime no. 128 of 2019, under sections 286/386/392/504 IPC, Police Station Atarra, District Banda.
As per prosecution case, revisionist along with co-accused were arrested on 07.06.2019 at about 4:30 p.m; firearms and cartridges were recovered from them. Investigation Officer submitted charge sheet dated 11.06.2019 against both the accused persons under sections 286, 386, 392, 504 and 411 IPC.
It is submitted by learned counsel for the revisionist that alleged incident took place on 06.06.2019 at about 10:30 p.m and the F.I.R was lodged on 07.06.2019 at 3:53 a.m whereas the arrest and recovery have been shown at about 4:30 a.m which shows the probability of false case in which revisionist has illegally been implicated. Revisionist is an army personnel and, original license holder and, has never been convicted in any criminal case. There is no criminal history of revisionist and the antecedents of the revisionist are through-out good. There is no previous complaint with respect to the misuse of firearms. Even, till date, to the best of his knowledge, no cancellation proceeding has been initiated with respect to the firearms in question which was renewed from time to time. It is further submitted that revisionist has got the licenses of firearms to protect the property and life of his family members. The firearms and cartridges in question are kept in maalkhana of concerned police station and there is every likelihood of their destruction in absence of proper maintenance, which will cause irreparable loss to the revisionist. It is also submitted that no identification parade has been conducted to ascertain the involvement of revisionist in the commission of crime.
Per contra, learned A.G.A has submitted that the revisionist has rightly been prosecuted in the present matter and the impugned order has rightly been passed on the basis of police report. It is further contended that during investigation, Investigating Officer has collected sufficient credible evidence showing complicity of applicant/revisionist in the commission of offence. The rifle and pistol used in commission of crime are case property and further a report for cancellation of license has already been sent to the District Magistrate.
Perused the record and carefully considered the rival submissions made by learned counsel for the parties.
Revisionist has moved an application for release of his firearms under sections 451 and 457 Cr.P.C. Before discussing the merits of the instant revision, the scope of section 451 and 457 Cr.P.C is required to be discussed in light of the present matter.
Provisions as embodied under section 451 Cr.P.C entrust a duty upon the Court to pass orders for custody or disposal of case property during an inquiry or trial. The provision of section 451 Cr.P.C is reproduced below:-
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 or 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.
Explanation.-For the purposes of this section, "property" includes-
(a) property of any kind or document which is produced before the Court or which is in its custody.
(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.
A bare perusal of section 451 Cr.P.C clearly denotes that it enable the Court to pass appropriate order with respect to seized property, such as:
(i) For proper custody of property pending conclusion for inquiry or trial.
(ii) Pass order to sale the property or otherwise dispose of, after recording such evidence as it think necessary.
(iii) If property is subject to speedy and natural decay or if it is otherwise expedient so to do, to dispose of the same.
It is noteworthy to state that our police stations are flooded with seized articles and there is always possibility of misappropriation, misplace, replace, and damage of property which are seized and kept in police custody pending conclusion of an inquiry or trial. Noticing paucity of space in police stations, which are flooded with seized articles, and to reduce the scope of misappropriation of amount or replace/misplace of valuable articles or damage of property, goods, perishable product/commodities which are seized and kept in police custody pending conclusion of inquiry or trial, the Hon'ble Supreme Court had made certain observation, in the matter "Sunder Bhai Ambala Desai Vs. State of Gujarat reported in AIR 2003 SC 638", to avoid such circumstances and held that power under 451 Cr.P.C should be exercised promptly and at earliest.
Relevant paragraph nos. 7, 11, 12, 13, 14 and 17 of the case of Sunder Bhai Ambala Desai (Supra) is quoted below:
7. 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 panchnama 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 property 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.
11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.
12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:--
(1) preparing detailed proper panchnama of such articles;
(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security.
13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.
14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed.
17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.
In the aforesaid case, Hon'ble Supreme Court has observed that object of the Code seems to be that any property which is in the control of Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always act under the direct control of Court and take orders from it at every stage of an inquiry or trial. Thus, the Court exercises an overall control on the action of Police Officers in every case where it has taken cognizance.
With respect to the custody of seized property pending trial, Hon'ble Supreme Court has made precise observations in the matter of "Smt. Basavva Kom Dyamangouda Patil Vs. State of Mysore and Others reported in (1977) 4 SCC 358" Para no. 4 of the aforesaid judgment is quoted below:-
4. "The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is sought to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of any inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the Police Officers in every case where it has taken cognizance."
In the matter of Smt. Basavva Kom Dyamangouda Patil (Supra) Hon'ble Supreme Court has dealt with the matter where case property pending trial is stolen or destroyed. Hon'ble Supreme Court has observed that where property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its Officers has taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so required, order payment of value of property.
Phrase "if it is otherwise expedient so to do" as embodied under section 451 Cr.P.C connotes wider expression giving ample power to the learned Magistrate to protect the property which is custodia legis. Once the property is produced before the Magistrate, he considers as to whom it should be handed over for safe custody pending the conclusion of inquiry or trial. Section 451 Cr.P.C provides an interim measure regarding the custody of property which has been seized during the investigation of crime. Word "expedient" shows that, in case, retention of property in Court would be more expensive and there being gradual damage pending trial, some order regarding interim custody has to be passed if some one come forward to take custody of property pending trial or inquiry.
Scope of Section 451 Cr.P.C has been made comprehensive, which includes all kind of material and documents produced before the Court or is in its custody and same may have been used for the commission of any offence or regarding which an offence appears to have been committed. The explanation gives a wider meaning of word "property" than it ordinarily has.
In my opinion, section 457 Cr.P.C is not fully applicable in the present matter, inasmuch as, it is applying in those matters where seizure of the property by police Officer is reported to Magistrate but such property is not produced before the criminal court during an inquiry or trial, whereas under section 451 Cr.P.C seized property is produced before any criminal court during an inquiry or trial and question of custody of property pending decision of inquiry or trial should be decided under this section.
The provision of section 457 Cr.P.C is reproduced below:-
"457. Procedure by police upon seizure of property:(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2). If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
In this view of the matter, under section 457 Cr.P.C, the seized property by the police is not produced before the Magistrate and the Magistrate has the power to decide who is the person entitled for its possession. Though Section 451 and 457 Cr.P.C. fall under Chapter XXXIV of the Cr.P.C. captioned as "Disposal Of Property", the scope of these sections are different.
In the present matter guns in question are confiscated by police and produce before the Magistrate which has been kept in police custody during the trial, therefore, provisions as embodied in section 451 Cr.P.C is attracted in the present matter.
It is admitted to the parties that revisionist is a license holder of both the firearms in question i.e. rifle and pistol, which is evident from the photo copy of the licenses annexed as Annexure no. 6 to the affidavit. In the same case crime number, revisionist has already been enlarged on bail vide order dated 26.07.2019 passed by this Court in Criminal Misc. Bail Application No. 29979 of 2019.
Revisionist is an Army personal and during his service period he has been granted license for both the aforesaid firearms and till date, to the best of his knowledge, no cancellation proceeding, for the said firearm license, has been initiated against him. In paragraph no. 8 of the counter affidavit it has simply stated that a report has been sent to the District Magistrate to initiate cancellation proceeding of firearms license in question but there is nothing on record to show that any proceeding has been initiated against the revisionist. Learned counsel for the revisionist submitted that up-till now the revisionist has not received any summon/notice relating to the case for cancellation of firearms license and no identification parade has been conducted to assertion the involvement of present revisionist, inasmuch as alleged offence is said to have been commissioned in night at about 10:30 p.m. Revisionist is a respectful and law abiding person and has obtained firearms to protect his life and property. As per submissions made by learned Senior Counsel, revisionist was never involved in the accomplishment of the alleged crime as mentioned in the F.I.R and, even, the forensic report has not been called for to ascertain the alleged involvement of firearms in question.
Be that as it may, the court below has illegally averted the intent of the legislation enshrined under section 451 Cr.P.C and has illegally rejected the application for release of firearms in question in a cursory manner, only relying upon the prosecution case and the police report depicting the safety of firearms in police custody. In the instant matter, where identity of firearms and, being licensee, entitlement of Sushil Kumar Dwivedi (revisionist) is not under cloud, it cannot be said that police custody is the "proper custody" of such property pending conclusion of the trial. Firearms are fragile and keeping it unattended for long period of time without proper care and maintenance, will put it in vulnerable condition and cause a progressive reduction in its quality.
Though firearms are safe in police station, the plausibility of it's being misused or misplaced or lost cannot be averted. Retention of seized property for indefinite period waiting result of inquiry or trial, will serve no purpose. Hon'ble Supreme Court in the matter of "Smt. Basavva Kom Dyamangouda Patil (Supra) observed that property, subject of offence, seized by the police, it ought not to be retained in the custody of the court or of the police for any time longer than what is absolutely necessary.
In the facts and circumstances of the present case, after considering the rival submissions of the parties and perusal of record, I feel it expedient in the interest of justice that it will of no use to keep the firearms in question, in the police custody, over the years till the trial is concluded. Therefore, it would be better to release the aforesaid firearms and give it in the custody of revisionist (Sushil Kumar Dwivedi) who is the valid license holder of the aforesaid firearms.
Accordingly, as discussed above, without commenting on merits of the case under trial, the instant revision is allowed and order dated 18.11.2019 passed by learned Additional Sessions Judge/Special Judge (D.A.A.), Banda is hereby quashed.
The Court below is hereby directed to release the firearms in question, viz Rifle No. 10A-B 05878-315 N.P. Bore and three life cartridges and Pistol No. R.P. 213879-32 Bore and four live cartridges which are confiscated by the police in Case Crime No. 128 of 2019 (State Vs. Pankaj Gautam) in Sessions Trial No. 70 of 2019, under Sections 286/386/392/504/411 I.P.C, Police Station Atarra, District Banda, upon furnishing an appropriate bond by the present revisionist and guarantee to the satisfaction of the court below, ensuring the ownership and return of said firearms, if required, at any point of time.
Order Date :- 27.1.2020 Vikram