- (1.) AMAR Saran, J. Heard learned Counsel for me revisionist and the learned A. G. A.
(2.) AN order dated 29-8-2007 passed by the C. J. M. , Mirzapur, in Case Crime' No. 147 2007 under Sections 302, 394,411, 120-B, IPC, refusing the applicant informants application dated 9-8-2007 under Section 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 police 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 misde- scribed as an application under Section 451, Cr. P. C. when it actually should be described as an application under Section 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 PS. 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 l. 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 mis appropriated in police custody. However, the learned Magistrate has rejected the said application 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 reauired during triat hence he was disallowing the applicants prayer for release of the said items in his favour. A counter-affidavit has been-filed 'by the Irwestigating Officer which mentions that the said items were recovered from the accused person a 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 faygur. ,
(3.) LEARNED Counsel for the revisionist has also drawn my attention to the decision of the Apex Court in Sunder bhai Ambalal Desai v. State of Gujarat AIR 2003 SC 638, 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 mis appropriated 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 pan be identified and if there are no competing claimants for the same. Precautions can be taken at the time of handing over the items tcrthe claimant by getting a Panchnama of the goods prepared that can be used an 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 decisioo, I direct that in case the Magistrale 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 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 thattie undertakes to produce the articles, if called upon by the Court to produce the same during trial and also after taking proper security from nim 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. .;