# Criminal Revision No. 272 of 2011Virendra Jaiswal v. State of U.P

- **Citation:** (2012) 2 ILRA 770
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-04
- **Bench:** Surendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/criminal-revision-no-272-of-2011virendra-jaiswal-v-state-of-u-p-42282
- **Pages:** 3

## Headnote

Code of Criminal Procedure Section-451release
of
Revolver-applicant
being
accused under section 307-enlarged on
bail-application-on ground it was never
used
in
incident-refused
merely
on
pendnecy
of
criminal
case-ignoring
direction of Apex Court in S.A. Desai
Case-without disclosing any reason for
refusal-held-not
sustainable-quasheddirection to release the same within 3
weak given.
Held: Para 8

Taking into consideration the entire facts
and
circumstances,
I
come
to
the
conclusion that the orders of the courts
below can not be left to stand. No good
reason has been assigned for refusing
the prayer for release of the said
revolver. Accordingly, the order dated
14.7.2011 passed by the learned Judicial
Magistrate Ist, Court No. 24, Gorakhpur
and the order dated 15.11.2011 passed
by
the
learned
Sessions
Judge,
Gorakhpur are quashed.
Case law discussed:
2003 (46) A.C.C. 223: AIR 2003 SC 638; 2003
(47) A.C.C. 1086

## Text

770 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the petitioner i.e. the workman was never
admitted by the employer, I do not find that
the Tribunal has committed any mistake,
legal or otherwise, in rejecting the
application of petitioner under Section 33-C
(2) of Central Act, 1947 warranting
interference in exercise of power under
Article 226. The order impugned in this writ
petition deserves to be sustained.

11. Writ petition is dismissed.

12. However, it is made clear this
order shall not preclude the petitioner from
taking such recourse as available to him in
law.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.05.2012

BEFORE
THE HON'BLE SURENDRA KUMAR, J.

Criminal Misc. Application No. - 41851 of
2011

Virendra Jaiswal

 ...Petitioner
Versus
The State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri A.P.Tiwari
Sri S.S. Tripathi

Counsel for the Respondents:
Govt.Advocate

Code of Criminal Procedure Section-451release
of
Revolver-applicant
being
accused under section 307-enlarged on
bail-application-on ground it was never
used
in
incident-refused
merely
on
pendnecy
of
criminal
case-ignoring
direction of Apex Court in S.A. Desai
Case-without disclosing any reason for
refusal-held-not
sustainable-quasheddirection to release the same within 3
weak given.
Held: Para 8

Taking into consideration the entire facts
and
circumstances,
I
come
to
the
conclusion that the orders of the courts
below can not be left to stand. No good
reason has been assigned for refusing
the prayer for release of the said
revolver. Accordingly, the order dated
14.7.2011 passed by the learned Judicial
Magistrate Ist, Court No. 24, Gorakhpur
and the order dated 15.11.2011 passed
by
the
learned
Sessions
Judge,
Gorakhpur are quashed.
Case law discussed:
2003 (46) A.C.C. 223: AIR 2003 SC 638; 2003
(47) A.C.C. 1086

(Delivered by Hon'ble Surendra Kumar, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the
State.

2. The applicant Virendra Jaiswal
has filed this application under Section
482 Cr.P.C. challenging the order dated
14.7.2011 passed by the learned Judicial
Magistrate Ist, Court No. 24, Gorakhpur
in Crime No. 140 of 2011-State Vs. Ravi
Jaiswal, under Section 307 I.P.C., Police
Station Khajani, District Gorakhpur and
the order dated 15.11.2011 passed by the
learned Sessions Judge, Gorakhpur in
Criminal Revision No. 272 of 2011Virendra Jaiswal Vs. State of U.P.,
whereby release of the revolver of the
applicant has been refused.

3. It appears that the said revolver is
involved in Case Crime No. 140 of 2011State Vs. Ravi Jaiswal, under Section 307
I.P.C., Police Station Khajani, District
Gorakhpur. The allegation is that the
instant revolver was used in the aforesaid
offence and, therefore, it was refused to
be
released.
2 All] Virendra Jaiswal V. The State of U.P.
771

4. Learned counsel for the applicant
has submitted that the applicant is owner
of 32 bore Revolver No. 21569 F.G. being
Licence No. 5487 and the said revolver
was never used in any criminal activities
and no complaint was ever made against
him. The applicant was involved in the
said case and he was granted bail by the
court below in Case Crime No. 140 of
2011-State Vs. Ravi Jaiswal, under
Section
307
I.P.C.,
Police
Station
Khajani, District Gorakhpur but the said
revolver has been refused to be released.

5. The next submission of the
learned counsel for the applicant is that
the applicant had produced the relevant
documents before the learned Sessions
Judge to substantiate his ownership. There
is no dispute regarding ownership but on
account of pendency of criminal case, he
has been refused release.

6. I have gone through the record as
well as the impugned orders. The Hon'ble
Apex Court, in the case of Sunderbhai
Ambalal Desai Vs. State of Gujrat, 2003
(46) A.C.C. 223: AIR 2003 SC 638 has
clearly held that the powers under Section
451
Cr.P.C.
should
be
exercised
expeditiously and judiciously. It would
serve various purposes:- (i) Owner of the
article would not suffer because of its
remaining unused,(ii) Court or the police
would not be required to keep the article
in safe custody, (iii) If the proper
panchnama before handing over article is
prepared, that can be used in evidence
instead of its production before the court
during the trial, if necessary, (iv) This
jurisdiction of the court to record
evidence should be exercised promptly so
that there may not be further chance of
tampering with the articles. The Apex
Court has clearly held that appropriate
orders should be passed immediately
because keeping it at police station for a
long period would only result in decay of
the article. The court should ensure that
the article will be produced if and when
required by taking bond, guarantee or
security.

In the aforesaid judgment it has also
been held that the concerned Magistrate
would take immediate action for seeing
that powers under Section 451 Cr.P.C. are
properly and promptly exercised and
articles are not kept for a long time at the
police station, in any case, for not more
than fifteen days to one month.

7. Similar view has been followed in
a number of decisions of this Court as
well. Mohd. Shamim Khan Vs. State of
U.P., 2004, A.C.C. (48), 605. In the case
of Tulsi Rajak Vs. State of Jharkhand,
2004, Criminal Law Journal, 2450, it
was held that truck lying in the police
station for more than one year resulted in
heavy loss of the petitioner and in the
circumstances, the High Court permitted
to release the vehicle. In Gurnam Singh
and another Vs. State of Uttaranchal,
2003 (47) A.C.C., 1086, it was held that
what so ever the situation be, there is no
use to keep the seized vehicle at the police
station or court campus for a long period,
the Magistrate should pass appropriate
orders immediately by taking appropriate
bond and guarantee as well as security for
return of the said vehicle, if required at
any point of time.

8. Taking into consideration the
entire facts and circumstances, I come to
the conclusion that the orders of the
courts below can not be left to stand. No
good reason has been assigned for
refusing the prayer for release of the said
772 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
revolver. Accordingly, the order dated
14.7.2011 passed by the learned Judicial
Magistrate Ist, Court No. 24, Gorakhpur
and the order dated 15.11.2011 passed by
the learned Sessions Judge, Gorakhpur are
quashed.
The
learned
Magistrate
concerned is directed to release the said
revolver in favour of the applicant within
a period of three weeks from the date, a
certified copy of this order is produced
before
him
after
taking
adequate
guarantee/ security of the said revolver
from
the
applicant
and
also
an
undertaking that the revolver will not be
disposed of during pendency of the
criminal proceedings.

9. With the aforesaid observations,
this application is finally disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petitions No. 42938 of
1997

Kharanan

 ...Petitioner
Versus
Presiding Officer, Labour Court, Varanasi
and others

 ...Respondents

Counsel for the Petitioner
Sri Shesh Kumar

Counsel for the Respondents
C.S.C.
Sri Neeraj Tripathi
Sri Samir Sharma

Constitution of India, Article 226-writ
against order of Labor Court-deciding
reference against work man-who was
engaged as casual worker on post of
fitter
but
discharged
duty
of
Stenographer-entitled for nomenclature
and pay as of stenographer-as a matter
of fact workman claiming promotionemployer had already given all benefit of
the post on which was engaged-Labour
Court rightly decided reference against
workman-petition dismissed.

Held:Para 8

In the case in hand, Labour Court has
clearly observed that since at no point of
time,
petitioner
was
appointed
as
Stenographer
by
the
competent
authority following procedure prescribed
in law, he was not entitled for post, pay
scale and other benefits on the post of
Stenographer. It is not the case of
petitioner that he was appointed by
competent authority in accordance with
law on the post of Stenographer at any
point of time. He was substantively
appointed as Fitter and was given dues
payable
on
the
said
post.
In
the
circumstances, I do not find any error
apparent on the face of record in the
impugned
award
warranting
interference.
Case law discussed:
1985 UPLBEC 539; 2009 LabIC 905=2008 JT
(10) 578; 1966 (2) SCR 465; Civil Misc. Writ
Petition No. Case 17313 of 1997 (U.P.S.R.T.C.
& Another Vs, Brij Nandan Lal & Others)
decided on 2.5.2012; 2007 (4) ESC 2261 (Alld)
(DB); 2007 (2) ESC 987; AIR 1993 SC 2273;
1991 Supple (2) SCC 733

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for parties
and perused the record.

2. Writ petition is directed against the
award dated 28.11.1996 in adjudication case
no. 51 of 1994 answering the reference
against the workman. It appears that
workman claimed designation, pay scale
and other benefits on the post of
Stenographer though he was substantively
appointed as Fitter. It is contended that for