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2012 DIGILAW 1983 (BOM)

Badrinath v. State of Maharashtra

2012-10-12

SHRIHARI P.DAVARE

body2012
JUDGMENT SHRIHARI P.DAVARE, J. 1. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties taken up for final hearing. 2. By the present petition filed by the petitioner under Articles 226 and 227 of the Constitution of India, the petitioner prayed that the order, dated 26.3.2012, passed by the learned Additional Sessions Judge1, Majalgaon, District Beed, below Exh. 40, in Special (Atrocity) Case No. 1 of 2012, be quashed and set aside, and consequently, prayed that the application Exh.40 be allowed. 3. It is the contention of the petitioner that he is the lawful owner of revolver bearing No. A58344 and the petitioner is the authorized license holder thereof and the said license has been issued to him by the competent authority under the Arms Act and the Rules thereunder. Accordingly, it is the contention of the petitioner that he is authorized to hold and possess the said revolver/pistol. He also contends that license thereof has been renewed from time to time by the competent authority without any complaint. However, he submits that the political opponents with malicious intention to malign and harass the petitioner, managed to lodge a false complaint against the petitioner and two other persons on 20.4.2011 with the help of some social miscreants. 4. Accordingly, C.R. No. 21 of 2011 was registered at Wadwani police station against him and the co-accused for the offences punishable under Sections 376, 420, 312, 109, 506 r/w 34 of the Indian Penal Code and Section 3(10)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as well under Section 3(2) of the M.T.P. Act and also under Sections 4/25 of the Arms Act and under Sections 22, 23 of the Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. 5. Hence, apprehending the arrest, the petitioner preferred application for anticipatory bail before the learned Additional Sessions Judge, Majalgaon i.e. Criminal Application No. 58 of 2011. The said application was allowed by the said court on the condition that the applicant shall deposit his licensed revolver/pistol, which was alleged to be used in the present crime no. 21 of 2011 to the investigating officer, police station, Wadwani within a week time. 6. The said application was allowed by the said court on the condition that the applicant shall deposit his licensed revolver/pistol, which was alleged to be used in the present crime no. 21 of 2011 to the investigating officer, police station, Wadwani within a week time. 6. Accordingly, in compliance of the said order/condition, the petitioner surrendered the revolver before the investigating officer along with application, dated 15.6.2011, and the investigating officer has taken the custody thereof. Moreover, the petitioner submits that he has also surrendered original license along with said revolver/pistol and same also has been taken charge of by the investigating officer. It is the contention of the petitioner that the investigation has been completed and charge sheet has been filed by the investigating agency before the learned Judicial Magistrate, First Class, Wadwani on 10.11.2011 and the learned Trial Court has taken the cognizance thereof and the said case is committed to the Court of Sessions, which is registered as Special (Atrocity) Case No. 1 of 2012. 7. Hence, the petitioner preferred an application below Exh.40 before the learned Additional Sessions Judge, Majalgaon for return of the said revolver along with license thereof during the pendency of trial of the said case under Section 451 of the Code of Criminal Procedure. 8. Learned A.P.P. before the said court opposed the said application contending that the said revolver was used in the alleged commission of the offence and urged that the said application be rejected. 9. Accordingly, learned Additional Sessions Judge, Majalgaon passed an order below said Exh.40 in Special (Atrocity) Case No. 1 of 2012 on 26.3.2012 and thereby rejected the application of the petitioner for return of revolver and license. 10. Being aggrieved by the said order, the petitioner has approached this court by way of present petition for the prayers as set out herein above. 11. Learned counsel for the petitioner submits that he is the registered owner of the above referred revolver and the license thereof has been renewed up to 31.12.2011. Hence, he submits that return of the said revolver to the petitioner is necessary for the renewal of the said license. He further submits that said revolver is also required to be returned to the petitioner for the purpose of maintenance and servicing thereof. Hence, he submits that return of the said revolver to the petitioner is necessary for the renewal of the said license. He further submits that said revolver is also required to be returned to the petitioner for the purpose of maintenance and servicing thereof. In the said context, it is submitted that if the proper maintenance and servicing is not made to the said revolver, there is every possibility that the said revolver would be rusted. Hence, learned counsel for the petitioner urged that the said revolver be returned to the petitioner during the pendency of trial. 12. Learned A.P.P. opposed the present petition vehemently and submitted that there is no necessity of return of revolver to the petitioner for the purpose of renewal of license thereof. He submitted that if licensing authority required the said revolver for renewal purpose, the said licensing authority can call the revolver from the investigating officer directly therefor, and hence, opposed the present application. 13. Learned A.P.P. further pointed out that there are allegations of the prosecutrix against the petitioner that she was compelled to undergo termination of her pregnancy by the petitioner at the point of revolver in question. Moreover, it is also submitted that the said revolver was directed to be deposited by the Additional Sessions Judge, Majalgaon while granting anticipatory bail application of the applicant. Hence, it is canvassed by the learned A.P.P. that said revolver was allegedly used in commission of the offence and same was deposited by the applicant as per the directions of the learned Additional Sessions Judge, Majalgaon. Hence, he urged that it will not be proper and appropriate to return the said revolver to the petitioner, and therefore, urged that present petition be rejected. 14. I have perused the said petition, its annexures and also perused the additional compilation of photo copies of the documents filed by the petitioner disclosing the ownership of the revolver in question and also considered the rival submissions advanced by the learned counsel for the parties. 15. At the out set, it is apparent from the additional compilation of photo copies of documents tendered by the petitioner today across the Bar that the revolver no. 15. At the out set, it is apparent from the additional compilation of photo copies of documents tendered by the petitioner today across the Bar that the revolver no. 58344 was purchased by the father of the petitioner, namely Rajaram Keshaorao Pimparkhedkar on 24.9.1974 for the consideration of Rs.5,000/and the certificate dated 6.10.1990 discloses that his father was having name Rajaram Sable also, who expired on 6.10.2000 and the petitioner herein Badrinath Rajaram Sable had deposited the said revolver with the police personnel at Dindrud police station on 4.3.1991 and further discloses that the petitioner herein has taken training for use of the said revolver and further consent deed discloses that the brothers of the petitioner gave their consent to transfer the license of the said revolver in the name of the petitioner herein. Moreover, Exh. D to the present petition discloses that license was issued in the name of the petitioner for the user of the revolver which was renewed till 31.12.2011. Hence, it is necessary to renew the said license after 31.12.2011. 16. Keeping in mind the said aspect and coming to the order, dated 14.6.2011 passed in anticipatory bail application no. 58 of 2011 by the learned Additional Sessions Judge, Majalgaon, it discloses that while granting anticipatory bail to the applicant, direction was issued to the applicant to deposit the revolver/pistol which was allegedly used in the present crime, to the investigating officer/police station, Wadwani within a week time. Accordingly, it is submitted that the petitioner herein surrendered the said revolver in question along with the license thereof before the investigating officer in compliance of the said order, dated 14.6.2011, and accordingly, said revolver is in the custody of the investigating officer. 17. Thereafter, it appears that the investigation has been completed in C.R.21 of 2011 and charge sheet has been filed before the learned Judicial Magistrate, First Class, Wadwani, who committed the said case to the learned Additional Sessions Judge, Majalgaon and same was registered as Special (Atrocity) Case No. 1 of 2012. Hence, the petitioner preferred an application below Exh.40 in Special Atrocity Case No. 1 of 2012 for return of revolver under Section 451 of the Code of Criminal Procedure, but same came to be rejected. 18. It will be useful to reproduce Sections 451 and 457 of the Code of Criminal Procedure. 451. Hence, the petitioner preferred an application below Exh.40 in Special Atrocity Case No. 1 of 2012 for return of revolver under Section 451 of the Code of Criminal Procedure, but same came to be rejected. 18. It will be useful to reproduce Sections 451 and 457 of the Code of Criminal Procedure. 451. Order for custody and disposal of property pending trial in certain cases :When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation : For the purposes of this section, property includes :(a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 457. Procedure by police upon seizure of property :(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. 19. 19. Considering the aims and object of the said Sections 451 and 457 of the Code of Criminal Procedure, it is incumbent that the powers under Section 451 should be exercised judiciously, since it would serve various purpose such as owner of the article would not suffer because of remaining unused or by its misappropriation. The court or the police would not be required the article in the safe custody if proper panchanama before handing over of possession of article is prepared that can be used in evidence instead of its production before the court during the trial. 20. Hence, considering the said legal position, the revolver in question is required to be returned back to the petitioner herein, more particularly, for the purpose of renewal of license, and secondly, for the purpose of its maintenance and servicing, and also for the proper custody thereof with the petitioner, who claims to be the owner and license holder thereof. However, simultaneously, it cannot be ignored that the prosecutrix has alleged that she was compelled to undergo the termination of her pregnancy by the applicant at the point of said revolver. In substance, it is alleged that the said revolver was used in the commission of the alleged offence, and therefore, while granting anticipatory bail direction was issued to the petitioner to surrender the said revolver. However, admittedly investigation has been completed and charge sheet has been filed before the learned Judicial Magistrate, First Class, Wadwani, who has committed the said case to the court of Sessions, and therefore, there is no necessity to keep the said revolver with the investigating agency, and hence, same is required to be returned back to the petitioner on execution of suprutnama and bond of Rs.50,000/since reportedly value of the said revolver is about Rs.40,000/and after imposing requisite conditions. 21. 21. In the result, present petition is allowed and the impugned order, dated 26.3.2012, passed by the learned Additional Sessions Judge, Majalgaon stands quashed and set aside, and it is directed that the revolver in question bearing No. A58344 and the license thereof which was surrendered by the petitioner before the investigating officer in pursuance of the order, dated 14.6.2011 while granting anticipatory bail to the petitioner, be returned to the petitioner on execution of suprutnama by the petitioner on the following conditions : a. The petitioner shall execute bond of Rs.50,000/while taking the custody of the said revolver from the investigating officer. b. The petitioner shall not change the nature of the said revolver in any manner whatsoever. c. The petitioner shall maintain the said revolver properly and do the servicing thereof whenever required and keep the said revolver in order. d. The petitioner shall surrender the said revolver before the court as and when required. e. The petitioner shall not use the said revolver detrimental to the complainant or any other witnesses, and shall not threaten the complainant and any other witnesses by the said revolver in any manner whatsoever. f. The petitioner shall renew the license of the said revolver as and when required. g. The petitioner shall produce the said revolver before the investigating officer as and when required for the inspection purpose. H. Panchanama of the said revolver noting details thereof be prepared before returning it to the petitioner. 22. Rule is made absolute in the afore terms.