Mukhtiar Singh vs State of Punjab

J.S. Sekhon, J.

Mukhtiar Singh petitioner was tried, convicted and sentenced to imprisonment for life under section 302. Indian Penal Code, for the murder of one Karnail Singh vide order dated 24.2.1984, passed by Sessions Judge, Bhatinda. A.12 bore gun (Exhibit P. 3) along with its licence (Exhibit P.H) of the petitioner were taken in possession in that case. The Sessions Judge, however, by holding that since the gun has not been proved to be the weapon of offence, ordered the return of the gun and the licence. The abovereferred order of conviction and sentence was set aside by the High Court on 29.11.1984.The State of Punjab did not file any appeal against acquittal of the petitioner in the Supreme Court, but Mohinder Singh complainant filed a special leave petition in the Supreme Court under Article 136 of the Constitution of India challenging the order of the High Court. The Supreme Court granted the special leave to appeal on 1.5. 1989 and the case was then registered as Criminal Appeal No. 348 of 1989 and notice was issued to the accusedpetitioner.

Mohinder Singh moved an application before the Court of Sessions Judge, Bhatinda praying that the petitioner be directed to deposit his gun and licence in Malkhana because his appeal against acquittal is pending in the Supreme Court. The Sessions Judge vide his order dated September 14, 1984, directed the petitioner to deposit his gun in the judicial malkhana on or before October 30, 1989.

In this petition, the accusedpetitioner has challenged the abovereferred order of the learned Sessions Judge, Bhatinda, directing him to deposit the gun and the licence.

The main stress of the learned counsel for the petitioner is that the learned Sessions Judge was not competent to review his earlier order, especially when right of appeal was available to the aggrieved party under section 454 of the Code of Criminal Procedure, 1973, against the original order of the learned Sessions Judge, Bhatinda regarding the return of the gun and the licence. Thus, it is maintained that only the Supreme Court could have passed such an order while issuing notice to the accused in the above referred appeal against acquittal. Mr. J.S. Mann, the learned counsel for the complainant as well as Mrs. Nirmaljit Kaur, the learned counsel for the State on the other hand, maintained that in view of the pendency of the appeal against acquittal in the Supreme Court against the accusedpetitioner, the learned Sessions Judge was welljustified in recalling his earlier order and directing the accused to deposit the gun in the judicial malkhana.

There is no dispute between the parties that the learned Sessions Judge, Bhatinda had ordered the return of the gun and its licence to the accusedpetitioner as it was not proved to be used for committing the murder of Karnail Singh although the accused was held guilty for that murder and sentenced to undergo imprisonment for life vide judgment dated 24.2.1984. Obviously, the order regarding the return of the gun and sentence was passed under section 452 of the Code of Criminal Procedure. Section 454 of the Code gives a right of appeal to the aggrieved party against the order of the Court passed under section 452 of the Code. Admittedly, the State or the complainant had not filed any appeal before the High Court against the order of the trial Court regarding the return of the gun. Admittedly, the Supreme Court had not issued any direction regarding the deposit of the gun while issuing notice to the accused petitioner in the above referred appeal against acquittal.

Under these circumstances. the learned Sessions Judge was not legally justified to review this earlier order as the mere pendency of an appeal against acquittal in the Supreme Court would not justify this order because at the conclusion of the parent trial, the gun was ordered to be returned although the accused was held guilty for the murder of Karnail Singh.

For the foregoing reasons, the impugned order of the learned Sessions Judge is hereby quashed by accepting this petition.