# Vishnu Kumar Agarwal Revisionist v. State of U.P. & Ors. Opp. Party

- **Citation:** (2022) 11 ILRA 963
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-25
- **Case number:** Crl. Revision No. 111 of 2008
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishnu-kumar-agarwal-revisionist-v-state-of-u-p-ors-opp-party-47937
- **Pages:** 4

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 452 - Order for disposal
of property at conclusion of trial, Indian
Penal Code, 1860 - Sections 394, 411 -
once the accused from whom the silver
was recovered had disclaimed stolen
silver, then there should not have any
reason to not return the said silver to the
complainant from whom it belongs. (Para
-10)
964 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisionist (complainant in FIR) - filed an
application under Section 452 Cr.P.C. after trial -
accused acquitted - for release of 28 kgs of
silver - allegedly looted from him - silver was
recovered from accused (acquitted) - recovered
silver was made case property - silver to be
released in favor of revisionist - court not
required to consider ownership under Section
452 Cr.P.C..(Para - 2,9)

HELD:-Question of ownership not required to
be considered when the facts are not in dispute
that on the FIR being registered by the
revisionist/complainant, the silver was recovered
from the accused who had not claimed
ownership after acquittal. View of two courts
below incorrect on facts and law. Impugned
orders quashed. (Para - 12,13)

Revision allowed. (E-7)

List of Cases cited:-

Mahesh Kumar Vs St. of Raj., 1990 Sup 2 SCC
451

## Text

11 All. Vishnu Kumar Agarwal Vs. State of U.P. & Ors.
963
witnesses and consequently the whole of the
prosecution case."

25. Thus, non explanation of the
injuries sustained by the accused at the time
of occurrence or in the course of
transaction/occurrence is a very important
circumstance. But mere non explanation of
injuries by the prosecution may not affect
the prosecution case if evidence is clear,
cogent and creditworthy. This principle
applies
to
cases
where
the
injuries
sustained by the accused are minor and
superficial or where the evidence is so clear
and
cogent,
so
independent
and
disinterested, so probable, consistent and
creditworthy which outweighs the effect of
the omission on the part of prosecution to
explain the injuries as held by the Supreme
Court in the case of Rizan v. State of
Chhattisgarh (2003) 2 SCC 661.

23. Similar view has been taken by the
Supreme Court in the following cases:-

(i) (2000) 1 SCC 621Padam Singh v.
State of U.P., (2000) 1 SCC 621;

(Ii) (2003) 9 SCC 426 M.P. v.
Mishrilal;

(iii) (2004) 7 SCC 408Dashrath Singh
v. State of U.P.;

(iv) (2005) 12 SCC 657 Bishna vs
State of West Bengal; and

(v) (2006) 9 SCC 57Nagarathinam v.
State

24. In the present case, the accused,
Gurudeen received grievous injuries in the
occurence. Two witnesses who were
examined, were interested witnesses. No
independent witness was examined. The
case of the prosecution was not proved by
leading cogent and trustworthy witnesses.
Non explanation of the injuries on the
person of accused, Gurudeen became
important
and
assumed
significance.
Neither in the FIR nor in the charge-sheet,
the injuries were mentioned. Thus, the Trial
Court rightly assumed that the prosecution
did not come out with truth regarding
genesis of the occurrence. The prosecution
case had become doubtful and, therefore,
Trial Court had rightly not believed in the
prosecution
story
and
acquitted
the
accused.

25. Considering the limited scope of
the power under Section 397/401 Cr.P.C., I
do not find that the Trial Court has
committed palpable error of law or facts or
it did not rightly appreciated the evidence.
In view thereof, the present revision fails
and is hereby dismissed.
----------
(2022) 11 ILRA 963
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.08.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Crl. Revision No. 111 of 2008

Vishnu Kumar Agarwal ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Party

Counsel for the Revisionist:
Prabhu Ranjan Tripathi

Counsel for the Opp. Parties:
Government Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 452 - Order for disposal
of property at conclusion of trial, Indian
Penal Code, 1860 - Sections 394, 411 -
once the accused from whom the silver
was recovered had disclaimed stolen
silver, then there should not have any
reason to not return the said silver to the
complainant from whom it belongs. (Para
-10)
964 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisionist (complainant in FIR) - filed an
application under Section 452 Cr.P.C. after trial -
accused acquitted - for release of 28 kgs of
silver - allegedly looted from him - silver was
recovered from accused (acquitted) - recovered
silver was made case property - silver to be
released in favor of revisionist - court not
required to consider ownership under Section
452 Cr.P.C..(Para - 2,9)

HELD:-Question of ownership not required to
be considered when the facts are not in dispute
that on the FIR being registered by the
revisionist/complainant, the silver was recovered
from the accused who had not claimed
ownership after acquittal. View of two courts
below incorrect on facts and law. Impugned
orders quashed. (Para - 12,13)

Revision allowed. (E-7)

List of Cases cited:-

Mahesh Kumar Vs St. of Raj., 1990 Sup 2 SCC
451

(Delivered by Hon'ble Dinesh Kumar
Singh, J)

1. Present criminal revision under
Section 397/401 Cr.P.C. has been filed
against the judgment and order dated
11.10.2006 passed by learned District
Judge, Barabanki in Criminal Appeal No.18
of 2006, Vishnu Kumar Agarwal vs State of
U.P.

 Further prayer has been made for
quashing of the order dated 06.06.2006
passed
by Additional
Chief
Judicial
Magistrate, Court No.6, Barabanki by
which learned Chief Judicial Magistrate
had dismissed revisionist?s application
under Section 452 Code of Criminal
Procedure, 1973.

2.

The
revisionist
was
the
complainant in FIR registered at Case
Crime No.270 of 2002 under Sections 394
and 411 IPC, Police Station Ramnagar,
Barabanki. After charge-sheet was filed,
trial of the said offence was conducted in
Criminal Case No.208 of 2005. On
03.09.2005, the accused were acquitted in
the said case after conclusion of the trial.
The revisionist after conclusion of the trial
filed an application under Section 452
Cr.P.C. for releasing 28 Kgs silver, which
was allegedly looted from him for which
the Case Crime No.270 of 2002 under
Sections 394, 411 IPC was registered at
Police
Station
Ramnagar,
District
Barabanki. This silver was allegedly
recovered from the accused who faced trial
and acquitted and recovered silver was
made case property. The revisionist in the
said application stated that on 16.09.2002
said silver was robbed by the accused from
him, and same was recovered from the
accused and, therefore, after conclusion of
the trial the same should be released in his
favour.

3. The Learned Magistrate, however,
rejected the said application vide impugned
order dated 06.06.2006 on the ground that
the revisionist was given opportunity to
produce
documents
regarding
his
ownership and sales tax certificate to show
his ownership over the seized silver. The
revisionist
filed
photocopy
of
some
documents but from the said documents his
ownership was not proved and, therefore,
the
learned
trial
court
rejected
the
application for releasing the said silver in
his favour.

4. Aggrieved by the said order, the
revisionist had filed Criminal Appeal No.18
of 2006 before the learned District Judge,
Barabanki.

5. Learned Appellate Court vide
impugned order dated 11.10.2006 held that
11 All. Vishnu Kumar Agarwal Vs. State of U.P. & Ors.
965
the
revisionist
did
not
support
the
prosecution case in his evidence as P.W.-2.
He was declared as hostile witness. He said
that he did not recognize the persons who
had robbed him. He did not recognize the
accused-Meharbaan
Singh
and
Vijay
Bahadur Yadav who were present in the
Court and said that they were not present
when
incident
took
place
nor
they
committed the loot. He also said that no
seizure memo was prepared in his presence
of
the
silver
which
was
allegedly
recovered. When the silver was shown to
him in the police station at that time two
accused present in the court were not there.
The police did not tell him that from where
and from whom the silver was recovered.

6.

Learned
Appellate
Court
considering the aforesaid stand of the
revisionist during trial of the case held that
the revisionist was not telling the correct
facts and, therefore, the revisionist could
not be believed that he was owner of said
silver. He also could not file any
proof/document regarding his document
over the silver in question. Despite given
time by the learned Magistrate, he could
not
produce
any document
that
he
registered with the Sales Tax Department.

7. In view thereof, learned Appellate
Court held that since revisionist could not
file any document to prove his ownership
over the silver, which was allegedly
recovered by the police and therefore, the
said silver was to be escheated to the State.

8. Heard learned counsel for the
revisionist and learned A.G.A. for the State.

9. Learned counsel for the revisionist
submits that it is not in dispute that it was the
revisionist who lodged the FIR in question
alleging that he was robbed of 28 kgs silver
and same silver was recovered by the police
which became the case property. He has
further submitted that after conclusion of the
trial even if the accused were acquitted, silver
ought to have been released in his favour as it
was his property which was looted by the
accused. The Court is not required to look at
the ownership while passing the order under
Section 452 Cr.P.C.

10. Learned counsel for the revisionist
has placed reliance on the judgment in the
case of Mahesh Kumar vs State of
Rajasthan 1990 Sup 2 SCC 451 to submit
that once the accused from whom the silver
was recovered had disclaimed stolen silver,
then there should not have any reason to not
return the said silver to the complainant from
whom it belongs.

 Para 2 to 4 of the said judgment would
read as under:-

"2. In the facts and circumstances of the
present case, we are satisfied that the
direction made by the learned Single Judge of
the Rajasthan High Court for the forfeiture of
the amount of Rs 20,000 (Rupees twenty
thousand) to the State is wholly unwarranted.
It is now accepted principle that the
confessional part of the statement made by
the accused leading to discovery within the
meaning of Section 27 of the Evidence Act,
1872 or Section 162 of the Code of Criminal
Procedure, 1973 can be made use of for
purpose of and the disposal of property under
Section 452 of the Code. There is a long line
of decisions laying down the principle and we
would refer to only a few of them.

3. In Queen Empress v. Tribhovan
Manekchand [ILR 9 Bom 131] a Division
Bench of the Bombay High Court laid down
that the statement made to the police by the
accused persons as to the ownership of
property which was the subject matter of the
proceedings
against
them
although
966 INDIAN LAW REPORTS ALLAHABAD SERIES
inadmissible as evidence against them at the
trial for the offence with which they were
charged, were admissible as evidence with
regard to the ownership of the property in an
enquiry held by the Criminal Procedure
Code. The same view was reiterated in Pohlu
v. Emperor [AIR 1943 Lah 312 : 45 PLR 391
: 209 IC 546] where it was pointed out that
though there is a bar in Section 25 of the
Evidence Act, or in Section 162 CrPC for
being made use of as evidence against the
accused, this statement could be made use of
in an enquiry under Section 517 CrPC when
determining the question of return of
property. These two decisions have been
followed by the Rajasthan High Court in
Dhanraj Baldeokishan v. State [AIR 1965 Raj
238 : (1965) 2 Cri LJ 805 : 1965 Raj LW
289] and the Mysore High Court in
Veerabhadrappa v. Govinda [ILR (1973) 23
Mys 64] . In the present case, the amount in
question was seized from the accused in
pursuance of statements made by them under
Section 27 of the Evidence Act. The High
Court as well as the courts below have found
the property to be the subject of theft and the
acquittal of the accused is upon benefit of
doubt. The accused persons disclaimed the
stolen property and there is no reason why
the same should not be returned to the owner
i.e. the complainant to whom it belongs.

4. We, therefore, allow the appeal, set
aside the impugned part of the order passed
by the High Court directing the forfeiture of
amount of Rs 20,000 (Rupees twenty
thousand) and instead direct that the same be
returned to the appellant to whom the money
belongs."

11. I have considered the submissions
of learned counsel for the revisionist and
learned A.G.A. for the State.

12. During the course of trial the
revisionist had denied that the silver was
recovered from the accused, who were
acquitted and any seizure memo was
prepared in his presence. However, it is not
the case of the prosecution that silver was
of the accused who were acquitted later on.
This is also not the case of the prosecution
that accused or anyone else has claimed the
ownership of the seized silver. The question
of ownership is not required to be
considered when the facts are not in dispute
that on the FIR being registered by the
revisionist/complainant, the silver was
recovered from the accused who had not
claimed ownership after acquittal.

13. In view of the aforesaid, this
Court is of the view that the view taken by
the two courts below is incorrect on facts
and law. Therefore, the present revision is
allowed. The impugned orders are hereby
quashed.
----------
(2022) 11 ILRA 966
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Revision No. 175 of 2002

Umesh ...Revisionist
Versus
State of U.P. ...Opp. Parties

Counsel for the Revisionist:
Sri Ashok Nath Tripathi, Sri Satendra Kumar
Gupta

Counsel for the Opp. Parties:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision
-
The
Prevention
of
Food
Adulteration Act, 1955 - Section 7/16, The
Prevention of Food Adulteration Rule,