Mohammed Yamin, J. - (1.) Ramjas was tried by Munsif and Judicial Magistrate, Tibi for offence under Sec. 471, CrPC and Sec. 25 of the Arms Act. He was convicted and sentenced. The arm recovered from him was forfeited alongwith licence Ex. P. 3 which was alleged to be forged one. On appeal learned Sessions Judge set aside conviction but did not make any order about return of arm to the petitioner. When petitioner filed an application before learned Sessions Judge on 10.7.1996, he passed following order on 17.7.1996 : The petitioner has challenged this order in petition under Sec. 482, CrPC. I have heard learned counsel for the petitioner as well as learned Public Prosecutor. Learned counsel for the petitioner has submitted that the learned Sessions Judge should have passed an order of return of the rifle to the petitioner from whose possession it was recovered and who was having a licence though it was alleged to be forged one. According to him the petitioner is entitled to get back his rifle on production of a valid licence for which the petitioner is ready. On the other hand, learned Public Prosecutor has contended that since learned Sessions Judge did not pass any order about the return of rifle, it would mean that he had agread with the order of confiscation passed by learned Judicial Magistrate. He also submitted that there is no abuse of process of law and, therefore, the petition should be dismissed. I have considered the rival contentions. In this regard Sec. 452, CrPC which is material is re-produced below : 452. Order for disposal of property at conclusion of trial.- (1) When an inquiry or trial in any Criminal Court is concluded, the court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commissibn of any offence. (2) An order may be made under Sub-sec. (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties to the satisfaction of the Court, engaging to restore such property to the court if the order made under Sub-sec. (1) is modifed or set aside on appeal or revision. (3) A Court of Session may, instead of itself making an order under Sub-sec. (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Secs. 457, 458 and 459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of Sub-sec. (2), an order made under Sub-sec. (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of. (5) In this section, the term property includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.
(2.) Admittedly, learned Sessions Judge while disposing of the appeal did not pass any order about disposal of the arm which was confiscated by the trial court. To me it appears that the learned Sessions Judge could have passed an order afterwards about disposal of the property involved even after the judgment of acquittal in appeal was pronounced. Phraseology of Sub-sec. (1) quoted above makes it very clear when it says that the court may make such order as it thinks fit for disposal of any property when trial or inquiry is concluded. Use of word may leaves discretion. The trial court may, at any time after trial is concluded, pass order about disposal of property and so can be done by appellate court. It would not mean that if the trial court does not pass any order about disposal of property in judgment of conviction or acquittal, it cannot do so later on. There is no bar. View of the learned Sessions Judge that the court had become functious officio about the disposal of property, especially when it had not passed any order of disposal of rifle in judgment of acquittal, was wrong. Such an order could be passed later on. Arguments of learned Public Prosecutor do not appeal to me. The impugned order of learned Sessions Judge dated 17.7.1995 is not sustainable. The order of learned Sessions Judge is, therefore, set aside and he is directed to dispute of the application dated 10.7.1996 according to law. To this extent, this petition is allowed as it is to secure the ends of justice.;