Sanjeev Singh Yadav vs State Of Madhya Pradesh

Milind Ramesh Phadke, J

This petition under Section 528 of BNSS (section 482 of CrPC) has been filed for quashing the order dated 06.11.2025 passed by learned Fourth Additional Sessions Judge, Gwalior in MJCR No.4319/2025, whereby an application under Sections 451 & 457 of Cr.P.C. filed by the applicant was rejected.

It is alleged that the Police seized Gun of the present applicant in connection with Crime No.06/2023 registered at Police Station University District Gwalior for the offence punishable under Sections 307, 147, 148 & 149, 120-B of IPC & Section 30 of Arms Act. Applicant, who is the registered owner of the said 315 Bore Rifle bearing license No.316/2015 filed an application under Section 451 & 457 of Cr.P.C. before the learned Fourth Additional Sessions Judge, Gwalior for getting interim custody of the said Gun. The learned Fourth Additional Sessions Judge, Gwalior had rejected the earlier application on the ground that since the gun was resent for forensic examination, therefore, the custody of the same cannot be granted to the applicant. The aforesaid order was challenged by the applicant before this Court in M.Cr.C. No.47642/2025, which was disposed of vide order dated 28.10.2025 with a liberty to the applicant to renew his prayer again before the Trial Court, as in the meantime the FSL report dated 12.10.2011 with regard to the Gun was received by the trial Court.

In pursuance to the liberty granted by this Court the applicant again moved an application under Section 451, 457 of IPC, which came to be dismissed vide impugned order dated 06.11.2025 on the ground that though the FSL report has been received but since the said Gun was to be marked as an exhibit in the evidence giving the Gun in custody to the applicant would affect the evidence, therefore, it would not be proper to give the Gun in question in custody to the applicant. Being aggrieved by the aforesaid order, the present petition has been filed.

Learned counsel for the applicant while placing reliance in the matter of Sunderbhai Ambalal Desai vs. State of Gujarat (2002)10 SCC 283 , argued that in the aforesaid judgment the Apex Court has categorically held that the owner of the article would not suffer due to misappropriation of said article during the trial or kept in police custody and to avoid such a situation, the powers under Section 451 of Cr.P.C. should be exercised promptly and at the earliest and it would be proper to prepare an panchnama before handing over the possession the article, which can be used in evidence instead of production of the said article before the Court during the trial and if necessary, evidence could also be recorded describing the nature of the properly in detail, thus, it was prayed that the reasoning given by the learned trial Court in rejecting the application being contrary to the aforesaid settled legal position, the order needs to be set aside and the custody of the Gun in question be given to the present applicant.

On the contrary, learned counsel for the respondent/State has opposed the prayer and prayed for rejection of the petition. It was argued that learned trial Court has not committed any perversity and illegality in holding that since the Gun was required to be marked as an exhibit in evidence, its custody cannot be granted while rejecting the application. It was, thus, prayed that the present petition be dismissed.

Heard learned counsel for the parties and perused the record.

The Apex Court in the matter of Sunderbhai Ambalal Desai vs. State of Gujarat (supra), in paragraph 7 to 10 has held as under:-

"7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-

Owner of the article would not suffer because of its remaining unused or by its misappropriation.

Court or the police would not be required to keep the article in safe custody;

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; and

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.

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-

"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 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."

From the aforesaid legal position, it could be imperative that the power under Section 451 of Cr.P.C. is required to be exercised expeditiously and judiciously. 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.

According to this Court, keeping the Gun once, the FSL report has been received merely for marking it as an exhibit does not subserve the purpose and it would be of no use to keep such article in Court custody till the trial is over. If material on record indicates that such articles belong to the complainant, then after preparing detailed proper panchanama of such articles, taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and after taking proper security can be handed over to the complainant and for the said purpose the procedure of recording such evidence may be followed by the Court, as it thinks necessary, as provided under Section 451 of Cr.P.C.

Hence, the present petition is allowed and it is directed that the said 315 Bore Rifle bearing license No.316/2015 be released in favour of applicant who is registered owner of the said Gun on the following terms and conditions :-

i. Applicant shall furnish Supurdiginama to the sum of Rs.20,000/-(Rupees Thousand Only) and the surety of the like amount to the satisfaction of the learned Fourth Additional Sessions Judge, Gwalior for releasing the Gun in question.

ii. The applicant shall also furnish an undertaking that he shall produce the Gun in question as and when required during the trial.

iii. The applicant shall not alienate the same or make use of such Gun for any unlawful purpose during pendency of the case.

iv. Any other condition, which trial Court deems fit while releasing the said Gun.

It is further directed that before releasing the Gun in interim custody of the applicant, the S.H.O. of concerning Police station shall get photographs sized 18 x 12 inches of the concerned Gun taken from all sides. Such photographs shall be filed in the trial Court to be kept along with the record.

With the aforesaid directions, this petition stands disposed of.

Certified copy as per rules.