Pradeep Kumar Rastogi vs State of U.P.

Amar Saran, J.—Heard learned Counsel for the revisionist and the learned A.G.A.

An order dated 29.8.2007 passed by the C.J.M., Mirzapur, in Case Crime No. 147/2007 under Sections 302, 394, 411 and 120B, I.P.C., refusing the applicant/ informant''s application dated 9.8.2007 u/s 451, Cr. P.C. to release certain silver and gold jewellery items specified in the application which were said to have been looted from a bag belonging to the applicant''s aunt Pushpa Devi on 18.3.2007 after she was shot at by the miscreants, and which have been recovered by the polic from the possession of the accused, has been challenged by means of this application. As the said items do not appear to have been produced before the learned Magistrate up to this stage, perhaps the application has been misdescribed as an application u/s 451, Cr. P.C. when it actually should be described as an application u/s 457, Cr. P.C. But mere misdescription of the application will not make it non-maintainable. A report of the incident was earlier lodged at P. S. Kachhawa, district Mirzapur.

The applicant and his uncle (Smt. Pushpa Devi''s husband) are said to have identified the said looted items in the presence of the I.O. and have claimed to be the owners of the same. The applicant has expressed an anxiety that the said jewellery may be ruined or misappropriated in police custody. However, the learned Magistrate has rejected the said applicaiton by the impugned order dated 29.8.2007 observing that as the matter was triable by a Court of Sessions, and the said items may be requried during trial hence he was disallowing the applicant''s prayer for release of the said items in his favour.

A counter-affidavit has been filed by the Investigating Officer which mentions that the said items were recovered from the accused persons and the applicant/complainant identified the same and there is possibility of the complainant changing the items, if they are released. Learned Counsel rightly submits that there is no foundation for such an apprehension, as the complainant/applicant would gain nothing by changing the items in the event that they are released in his favour.

Learned Counsel for the revisionist has also drawn my atention to the decision of the Apex Court in Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, for the proposition that the powers under Sections 451 and 457, Cr. P.C. should be exercised judiciously and the owner of the article should not suffer loss or the risk of the property being misappropriated if it remains lying in the Court or the police''s custody. As far as possible such items ought to be directed to be handed over expeditiously to the claimant if he can be identified and if there are no competing claimants for the same. Precautions can be taken at the time of handing over the items to the claimant by getting a panchnama of the goods prepared that can be used as evidence in place of the goods and if necessary, evidence could also be recorded describing the nature of the property.

In view of the submissions of the learned Counsel for the applicant and basing my opinion on the aforesaid decision, I direct that in case the Magistrate finds that there is no other claimant for the property mentioned in the order of the learned Magistrate and if the accused are also not claiming the same as their own, the Court concerned may after preparing a proper recovery memo with respect to the seized items, taking the photographs of the articles and also having a bond executed from the applicant that he undertakes to produce the articles, if called upon by the Court to produce the same during trial and also after taking proper security from him release the same in favour of the applicant. As the said items are being released at the behest of the applicant, it is being made clear that at a later stage he shall not be entitled to raise a grievance of the fact that such items were not put up for identification in identification proceedings or they have not been identified in Court by the applicant. The trial court should also expeditiously record the evidence relating to the seized items as observed by the Apex Court in Sunderbhai''s case (supra). The application is disposed of as above.