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2003 DIGILAW 254 (HP)

SHAM LAL v. STATE OF H. P.

2003-08-29

M.R.VERMA

body2003
JUDGMENT M. R. Verma, J.: - The petitioner has preferred the present petition on being aggrieved by the order dated 3.9.2002, passed by the learned Sessions Judge, Shimla, whereby the application of the petitioner for release of one SBBL 12 Bore Gun, bearing No. 01273, taken in possession during investigation in case FIR No. 38/96, under Section 302 IPC and Section 25 of the Arms Act, by Jubbal Police, has been dismissed. 2. Briefly stated, the relevant and material facts for the purpose of disposal of the present petition are that one Riban Lal was tried for the commission of an offence or murder by the learned Sessions Judge, Shimla. The aforesaid gun was taken in possession by the Investigating Agency in the said FIR, being weapon of offence, as said Riban Lal was alleged to have used the said gun for committing the murder. The learned Sessions Judge, Shimla, vide judgment dated 1.7.1997 convicted and sentenced said Riban Lal. However, order regarding disposal of the gun was not passed. Riban Lal preferred Criminal Appeal No. 378 of 1997 in this Court which was dismissed vide judgment dated November 4, 1999. Orders regarding disposal of the gun were not passed even in the appeal, but it was specifically held that the gun in question belonged to Sham Lal (PW-15) i.e. the petitioner, under a valid licence. After the disposal of the appeal, petitioner filed Cr. M.M.O. No. 18 of 2002,in this Court for release of the gun and a learned Single Judge of this Court disposed of the same vide order dated 5.4.2002, observing that the gun in question, admittedly, belonged to the petitioner and he might approach the trial Court for appropriate relief. Pursuant to the said order, the petitioner moved Cr. M.P. No. 68-S/4 of 2002 in the Court of the Sessions Judge for release of the gun. The learned Sessions Judge dismissed the application on the premises that his Court had become functus officio and, therefore, the application before it was not maintainable. Hence this petition. 3. I have heard the learned Counsel for the petitioner and the learned Deputy Advocate General for the respondent-State and have gone through the record. 4. It may be pointed out at the very outset that the approach of the Sessions Judge in dismissing the application has been perverse. Hence this petition. 3. I have heard the learned Counsel for the petitioner and the learned Deputy Advocate General for the respondent-State and have gone through the record. 4. It may be pointed out at the very outset that the approach of the Sessions Judge in dismissing the application has been perverse. Neither he cared to apply his mind to the provisions of Section 452 of the Code of Criminal Procedure (hereafter referred to as the Code) nor to the direction given by the learned Single Judge holding that the petitioner was the owner of the gun and for release thereof, he could make an application before the trial Court. Thus, the learned Sessions Judge, not only ignored the clear provisions of Section 452 of the Code, but also, by necessary implications, bypassed and ignored the orders passed by this Court. 5. Section 452 of the Code provides for orders for disposal of property at conclusion of inquiry or trial. Evidently, this section will apply to disposal of property after the conclusion df an inquiry or trial by acquittal or discharge or conviction. After the conclusion of the inquiry or trial, the trial Court has not only the jurisdiction but a duty to pass orders regarding disposal of four classes of properties listed in the Section. The object of the provisions of Sections 452 and 457 of the Code is to provide a summary method of restoring the case property after the conclusion of the trial to the party legally entitled to possession thereof. Though, ordinarily, order regarding disposal of the property must be passed at the time of passing of the final judgment, but in the event of the trial Court failing to pass such an order, there is no time limit to make an application for release of the case property by. a person claiming a lawful title for possession of such property. There is nothing in the section which prevents a party from making an application after the case has been disposed of. In fact, cause of action to the person claiming the property will arise only after the conclusion of trial and when no order regarding disposal of the case property has been passed. There is nothing in the section which prevents a party from making an application after the case has been disposed of. In fact, cause of action to the person claiming the property will arise only after the conclusion of trial and when no order regarding disposal of the case property has been passed. Thus, an application for release of property before the trial Court will not be rendered non-maintainable, simply because the judgment has already been passed in the case in which the property sought to be released was in the custody of the Court as the case property or as a piece of evidence. The conclusion to the contrary as arrived at by the learned Sessions Judge, is, thus, contrary to the express provisions of law. 6. In any case, the court below ought to have taken note of the order passed by the learned Single Judge of this Court directing the petitioner to make an application for release of the gun before the trial Court. It may not for the Court below, by necessary implications, to come to a conclusion that such a direction given by a superior Court, was not in consonance with the relevant provisions of law. 7. In view of the above discussion, the order passed by the Court below is unwarranted, illegal and perverse and has resulted in gross-injustice to the petitioner, therefore, is rendered unsustainable. The learned Sessions Judge was duty bound to dispose of the application made before him by the petitioner for release of the gun in accordance with the provisions of Section 452 and/or Section 457 of the Code. 8. As a result, this petition is allowed, the order dated 3.9.2002, passed by the learned Sessions Judge is set aside and he is directed to re-register the application of the petitioner for release of the gun and dispose it of in accordance with law and the observations made hereinabove. Parties are directed to appear before the Court below on 15.9.2003.