# Gyanendra Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 610
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-11
- **Case number:** Criminal Revision No. 1547 of 2020
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyanendra-revisionist-v-state-of-u-p-anr-50252
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 307 & 504 - Code of Criminal
Procedure, 1973 - Section 451 - Against
seizure of property by police - The accused
armed
with
rifle,
started
abusing
informant and other persons, fired with
his licensed rifle, in which informant
escaped - Charge sheet - Licensed rifle
taken into possession by police, deposited
in
treasury
-
Release
Application
-
Rejected - Revisionist was valid licensee
of
impugned
rifle
-
Held,
Incharge
(Arms/ADM (Administration) reported to
concerned Magistrate that licence does
not belong to same District therefore, it
was not possible for authority to verify
arms
licence
-
In
absence
of
any
proceeding regarding confiscation and
cancellation of rifle, it would be case
property, release order may be passed -
Prosecution may take snaps of rifle and
preserve it as document for production in
court - The Magistrate was empowered to
impose some conditions while releasing
rifle - Informant has not supported
prosecution version - Impugned order
quashed, release application allowed -
Directions accordingly. (Para 3, 4, 6, 10,
12, 15, 16)

Criminal Revision allowed. (E-13)

List of Cases cited:

Sunder Bhai Amba Lal Desai Vs Gujrat St.,
(2002) 10 SCC 283

## Text

610 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 5 ILRA 610
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 1547 of 2020

Gyanendra ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sarvesh Kumar Dubey, Sri Virendra
Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 307 & 504 - Code of Criminal
Procedure, 1973 - Section 451 - Against
seizure of property by police - The accused
armed
with
rifle,
started
abusing
informant and other persons, fired with
his licensed rifle, in which informant
escaped - Charge sheet - Licensed rifle
taken into possession by police, deposited
in
treasury
-
Release
Application
-
Rejected - Revisionist was valid licensee
of
impugned
rifle
-
Held,
Incharge
(Arms/ADM (Administration) reported to
concerned Magistrate that licence does
not belong to same District therefore, it
was not possible for authority to verify
arms
licence
-
In
absence
of
any
proceeding regarding confiscation and
cancellation of rifle, it would be case
property, release order may be passed -
Prosecution may take snaps of rifle and
preserve it as document for production in
court - The Magistrate was empowered to
impose some conditions while releasing
rifle - Informant has not supported
prosecution version - Impugned order
quashed, release application allowed -
Directions accordingly. (Para 3, 4, 6, 10,
12, 15, 16)

Criminal Revision allowed. (E-13)

List of Cases cited:

Sunder Bhai Amba Lal Desai Vs Gujrat St.,
(2002) 10 SCC 283

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Sarvesh Kumar Dubey,
learned counsel for the revisionist, Sri
Anand Sagar, learned AGA for the State
and perused the record.

2. This revision has been preferred
against the order dated 20.07.2020 passed
by Additional Chief Judicial Magistrate,
Court No.1, Bulandshahr in Case Crime
No.264 of 2020 (State Vs. Gyanendra),
under Sections 307 and 504 IPC, Police
Station Jahagirabad, District Bulandshahr
and to release the revisionist's licensed rifle
bearing
Licence
No.K/146/ARMS/DM/KUL/202/2012
Rifle No.AB1300681- .315 Bore in his
favour.

3. In brief, facts of the case are that
Lakhma, opposite party no.2 lodged an FIR
on 15.06.2020 with the allegations that
accused Gyanendra has enmity with him
due to altercation occurred two years ago.
On 15.06.2020 at about 12:00 noon, the
informant, Lakhma, Surendra, Lal Singh,
Harveer, Manoj were sitting and watching
the government work going on near the
pond when the accused reached with rifle
and started abusing him and when the
informant prevented him, he fired upon him
with his licensed rifle with the intention to
kill him in which he escaped. On the above
5 All. Gyanendra Vs. State of U.P. & Anr.
611
facts the informant lodged the FIR for
initiation of legal proceeding against him.

4. After investigation charge sheet
had been submitted against the revisionist
under Sections 307 and 504 IPC and his
licensed
rifle
had
been
taken
into
possession by the police. The revisionist
moved an application in the Court of
ACJM on which a report had been called
for and thereafter the concerned court
rejected
the
release
application
on
20.07.2020 which is impugned herein.

5. The revisionist has challenged the
impugned order on the grounds that it is
illegal and unfair and has been passed
ignoring the facts and law involved in the
case even without applying judicial mind
and without considering background of the
case in hasty manner which is bad in the
eyes of law. It has been held by the Apex
Court that articles prone to natural decay
shall be released in favour of the owner
subject to certain conditions but the trial
court rejected the release application in
illegal and arbitrary manner. The FIR
version is totally misconceived and has
been lodged merely to solve the old
pending enmity. The informant did not
sustain any injury and is alleged to have
escaped, hence the revision be allowed and
the impugned order be set aside.

6.

Learned
counsel
for
the
revisionist argued that virtually an FIR
had been lodged by the wife of the
revisionist namely Kavita Devi regarding
the incident dated 25.10.2018 occurred at
about 09:00 a.m. about which an FIR
under Sections 394, 379, 511, 452 and
506 IPC had been lodged. The informant
has lodged the present FIR to mount
pressure
upon
the
revisionist
to
compromise
the
previously
lodged
criminal case and there is no truthfulness
in the FIR.

7. The revisionist has also filed
statement
of
PW-1,
Lakhma
i.e.
informant
through
supplementary
affidavit which shows that the revisionist
had not fired upon the informant. He had
not seen the revisionist firing upon him
virtually. At the alleged placed of
occurrence there were several monkeys
fighting with each other and a fire
occurred for dispersing them. Some of
the persons informed that the revisionist
had fired upon him. He had not received
any firearm injury and had also not seen
the revisionist firing upon him. On the
hearsay of villagers he had lodged the
FIR. He himself had not written the
complaint. Informant - opposite party
no.2 has been declared hostile and he was
cross-examined
by
the
Government
Advocate but even in such crossexamination he did not favour the
prosecution case. In cross-examination by
the defence he deposed that he is only 8th
pass. The report had neither been written
by him nor it had been read over to him.
He had not received any injury and he
was
not
medically
examined.
The
revisionist had not abused him. The
witness was also cross-examined by the
court in which he deposed that at the time
of alleged occurrence, the accused had no
weapon with him. He could not say as to
which person had written the complaint.
He had only signed the complaint. On the
day of occurrence he was not interrogated
by the police. Day after the incident he
was summoned for interrogation by the
police and he had stated that an explosion
had been made for dispersing the
monkeys. He had lodged the complaint
against the accused on the saying of some
villagers.
612 INDIAN LAW REPORTS ALLAHABAD SERIES

8. From the above deposition of the
informant it is very much clear that the
informant opposite party no.2 has not
supported the prosecution case in his
statement.

9. From perusal of the record it
transpires that the impugned licensed rifle
has been taken into custody by the police
and has been deposited in police malkhana
(treasury). Before passing the impugned
order,
the
concerned
Magistrate
had
summoned
the
report
from
District
Magistrate/Additional District Magistrate
about which a report had been submitted on
17.07.2020 to the effect that the arms
licence does not belong to District
Bulandshahar, hence no proceeding for its
cancellation is possible from the office of
District Magistrate, Bulandshahar. It has
also been reiterated that till 16.07.2020, no
police report regarding confiscation of the
impugned rifle had been received.

10. From perusal of record it
transpires that the revisionist is the valid
licensee of the impugned rifle and it is
valid upto 24.05.2025.

11. A counter affidavit has been filed
by the Sub-Inspector of Police Station
Jahangirabad in which it has been stated
that about the alleged offence, a criminal
case is pending in the court, the impugned
rifle has been used in commission of crime
and a report has been submitted for
cancellation of licence before the District
Magistrate, Bulandshahar.
12. However, no copy of such report has
been annexed with the counter affidavit
filed on behalf of the State and it is very
much clear from the version of said SubInspector that till 16.07.2020 no report for
confiscation of the impugned rifle had been
sent by the concerned police station to the
office of District Magistrate. Incharge
(Arms/ADM
(Administration),
Bulandshahar has also reported to the
concerned Magistrate on 17.07.2020 that
since the licence of the impugned rifle does
not belong to District Bulandshahar,
therefore, it is not possible for the authority
at Bulandshahar to verify the arms licence.
From perusal of photocopy of the arms
licence it transpires that the arms licence
for the impugned rifle had been issued by
the ADM, Rajori, Jammu and Kashmir.
Hence, if the police and administration of
District Bulandshahar were of the view that
on the basis of FIR, the arms licence of the
accused must be concealed, it was their
duty to approach the concerned authority to
convey the whole facts for getting the
licence cancelled and the rifle confiscated.
There is no iota of evidence that any such
step has been taken by the police or the
administration of District Bulandshahar.
Hence, this Court is of the view that in
absence of any proceeding regarding
confiscation
and
cancellation
of
the
impugned rifle, the rifle would be treated to
be case property about which a release
order may be passed under Chapter
XXXIV of the Code of Criminal Procedure.
Section 451 CrPC deals with the custody
and disposal of the case property during the
pendency of the trial. For ready referenece
Section 451 CrPC reads as under:-

"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
5 All. Gyanendra Vs. State of U.P. & Anr.
613
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."

13. In Sunder Bhai Amba Lal Desai
Vs. Gujrat State, (2002) 10 SCC 283 the
Apex Court held that; (i) owner of the
article would not suffer because of its
remaining
unused
or
by
its
misappropriation, (ii) court or the police
would not be required to keep the article in
safe custody, (iii) if the proper panchanama
before handing over possession of article is
prepared, that can be used in evidence
instead of its production before the Court
during the trial. If necessary, evidence
could also be recorded describing the
nature of the properly in detail, (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.

14. It is very much clear from the
perusal of the guidelines propounded by
the Apex Court that the impugned rifle is
also an article of which value would be
diminished and it would be decayed if
the same is not released in favour of the
valid licence holder. There is no other
claimant of the impugned rifle. Till now
no report has been submitted that the
licence of the accused revisionist is not
in accordance with law and he is not the
rightful owner/licensee of the impugned
rifle.

15. The Apex Court has held that
decayable articles should be released in
favour of the owner or possession holder
keeping its photograph preserved for
production as evidence in the court. In this
case the prosecution may take the snaps of
the impugned rifle and may preserve it as
document for production in the court at the
appropriate stage. The Magistrate was
empowered to impose some conditions
while releasing the rifle that the impugned
rifle would be kept safely by the licensee
and would not be transferred to any other
person till the final disposal of the case or
the appeal and it would be produced in the
court as material evidence. Even the
photographs taken so, may also be
produced as material evidence before the
concerned court.

16. It is also noteworthy that there is
no ballistic expert report to establish that
any FIR had been made from the impugned
rifle at the time of the alleged commission
of crime. The informant who is main victim
of the case has not supported the
prosecution version. Hence, considering the
above all circumstances and law relating to
the release of the property during the trial,
this Court is of the view that the rejection
order passed by the Magistrate is not
sustainable and is liable to be quashed and
the release application is liable to be
allowed.

17. This criminal revision is,
accordingly, allowed.

18. The impugned order dated
20.07.2020 passed by Additional Chief
Judicial
Magistrate,
Court
No.1,
Bulandshahr regarding rejection of release
of the rifle is quashed. The release
application shall be decided afresh by the
concerned court in the light of the above
614 INDIAN LAW REPORTS ALLAHABAD SERIES
observation. If the learned trial court
proceeds to release the impugned rifle,
before releasing the impugned rifle, the
concerned Magistrate/SHO shall verify as
to whether the revisionist is valid licensee
of the impugned rifle or not. It shall also be
verified that the impugned rifle had been
purchased by the revisionist in accordance
with law and that the revisionist has an
upto date rifle licence on the date of release
of the impugned rifle or not. If the
revisionist succeeds in establishing the fact
that he is the valid licensee, the impugned
rifle had been purchased by him in
accordance with law and he has valid upto
date licence at the time of release of the
impugned
rifle,
the
impugned
rifle
mentioned above would be released in his
favour if he further executes a personal
bond and two sureties of the like amount to
the satisfaction of the court concerned.
----------
(2023) 5 ILRA 614
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.03.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 1578 of 2023

Chandrabhan & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Jaysingh Yadav

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 308 - Code of Criminal Procedure,
1973 - Section 227 - Against rejection of
discharge application - Contention by
revisionist that FIR was lodged u/s 325,
323 & 504 IPC only - Injury report of
injured reveals there was no serious injury
- Section 308 & 506 IPC added in chargesheet - Discharge application - Rejected -
Persons of revisionist's side has suffered
injuries and cross-case was registered
against complainant side - Held, the
revisionists-accused are named in FIR -
Prosecution case was that accused hurled
abuses wife of complainant and assaulted
her, when some persons came to rescue,
they were assaulted, causing injuries -
One of injured has suffered serious head
injury, his NCCT Brain Report shows
extradural
hemorrhage
and
fractures,
which may be fatal - Both parties lodged
report against each other and which party
was
aggressor,
a
matter
of
trial
-
Sufficient evidence against revisionist - No
illegality in impugned order. (Para 2, 3, 5,
6)

Criminal Revision dismissed. (E-13)

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
revisionists and learned AGA for the State.

2. This criminal revision has been
filed against the order dated 21.02.2023
passed by Additional Sessions Judge-I,
Lalitput in S.T. No.481 of 2022 crime
no.189 of 2020 U/s 308/34, 325/34, 323/34,
504 & 506 IPC P.S. Mehrauni, District
Lalitpur. By the impugned order, the
learned court below has rejected the
discharge application filed U/s 227 Cr.P.C.
by the revisionist accused.

3. Learned counsel for the revisionist
contended that FIR of this case was lodged
U/s 325, 323 & 504 IPC only. The injury
report of the injured reveals that there is no
serious injury which may come in the
purview of Section 308 ICP. The injury of
Anshul is lacerated wound of size 3 cm