PRASHANT KUMAR AGARWAL,J. - (1.) Heard learned counsel for the parties. The applicant-appellant has filed this Criminal Appeal under Section 454 Cr.P.C. against the order dated 18.10.2016 passed by Additional Sessions Judge No.1, Sikar in Criminal Misc. Case No.45/2015 whereby the learned Court below dismissed the application filed by appellant under Section 452 Cr.P.C. whereby appellant prayed for release of case property mentioned in the application in his favour.
(2.) Brief relevant facts for the disposal of this appeal are that on the basis of a report lodged by brother of the appellant Shri Bhura Ram for an incident dated 20.07.1984 regarding death of mother of appellant, an FIR came to be registered and after investigation, charge-sheet was filed against one Shri Ram Niwas and Smt. Kesar for offences under Sections 302 and 201 I.P.C. The accused faced trial and they were convicted and sentenced by the Court of Additional Sessions Judge, Sikar vide judgment and order dated 13.07.1988 against which it is said that appeal before the High Court is still pending. While convicting and sentencing the accused, trial Court made an order about disposal of case property which was seized and recovered by the police during the course of investigation. Appellant filed an application under Section 452 Cr.P.C. with a prayer to release the case property in his favour but the same stood dismissed vide impugned order by the Court below observing that appeal is pending before the High Court against the judgment and order dated 13.07.1988.
(3.) On consideration of submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and principle of law laid down by Hon'ble Gujarat High Court in the case of Kesar Ben v. State of Gujarat reported in 2004 Criminal Law Journal 2898 and more particularly looking to the nature of case property and also the fact that no other person including the accused has ever claimed the case property, I am of the opinion that the case property is liable to be released in favour of the appellant. It is wrong on the part of the Court below to decline the release of the case property in favour of the appellant merely by observing that against the judgment and order of conviction and sentence appeal filed by the accused is still pending before the High Court.;