Balram vs State Of Madhya Pradesh

This criminal revision under Section 397/401 of CrPC has been filed against the order dated 20/11/2017, passed by Additional

Sessions Judge, Shardarpur, District Dhar in Sessions Trial No.43/2017, by which the application filed by the applicant under Sections 451, 457 of

CrPC for release of the gun in interim custody has been rejected, on the ground that the gun is a matter of evidence and in case if it is released, then it

may prejudice the case of the prosecution.

For disposal of the present revision, it is not necessary to consider the facts of the case in detail. Suffice to say, the prosecution case, is that the

applicant was carrying a gun in question, however, there is no allegation that any gunshot was ever fired from the said gun.The allegations are that the

complainant was assaulted by pelting stones.

It is submitted by the counsel for the applicant that so far as the identity of the gun in question is considered, the applicant shall not challenge the same

before the trial Court at any stage of the trial and he shall produce the gun as and when directed by the trial Court and he shall not make any change

in the gun. Even the ownership of the gun would not be changed. It is further submitted that the Supreme Court in the case of Sunderbhai Ambalal

Deasai vs. State of Gujarat reported in (2002) 10 SCC 283, has held as under:-

''8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore

and Anr., [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that

case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of

those articles. In that context, the Court observed as under-

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 subject 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 an 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.

The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its

officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order

payment of the value of the property.

To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.''

Per contra, it is submitted by the counsel for the State that since there is an allegation against the present applicant that he was carrying a gun with

him at the time of incident, therefore, the gun in question is a matter of evidence and in case if it is released on Superdginama, then it may adversely

prejudice the prosecution case. However, after going through the charge sheet, it is fairly conceded by the counsel for the State that there is no

allegation against any of the accused persons of firing any gunshot from the gun in question.

Considered the submissions made by the counsel for the parties.

Undisputedly, it is not the case of the prosecution that any gunshot was fired from the gun involved in the present case. The only allegation is that the

present applicant was carrying the gun with him at the time of incident and the injuries were caused to the complainant by pelting stones.

In view of the undertaking given by the counsel for the applicant that the applicant shall never challenge the identity of the gun in question before the

trial Court and shall not change the ownership of the gun and also shall not make any change in the gun and shall produce the gun in question before

the trial Court as and when directed, this Court is of the considered opinion that no useful purpose would be served by not handing over the gun on

Superdginama to the applicant. Accordingly, this criminal revision is allowed on the following conditions:-

(i) That, the applicant shall furnish an undertaking before the trial Court to the effect that he shall never challenge the identity of gun in question at any

stage of criminal proceedings;

 (ii)That, the applicant shall not make any change in the gun in question;

(iii)That, the applicant shall produce the gun as and when directed by the trial Court;

(iv)That, the ownership of the gun shall not be changed;

(v) That, the applicant shall produce the gun before the trial Court,in case if it is directed to be confiscated at the end of trial.

Upon furnishing the undertaking as mentioned above and on furnishing a personal bond in the sum of Rs.1,00,000/-(Rupees one lac) with one surety

for the like amount to the satisfaction of the trial Court concerned, the interim custody of the gun in question be handed over to the applicant.

This revision succeeds and is hereby Allowed.

CC as per rules.